Free speech triumph as Court of Appeal rules recording of ‘non-crime hate incidents’ is unlawful
Former police officer Harry Miller has won a landmark legal battle this week against the police recording ‘non-crime hate incidents’ (NCHIs) against innocent people for things they have said lawfully. Miller was reported to the police for transphobia in 2019 after tweeting a piece of feminist doggerel that sent up trans women. A police officer visited his house, told him to “check his thinking”, and an NCHI was recorded against his name. Harry first challenged this in the High Court, won a partial victory, then challenged an aspect of that verdict – the bit that said there was nothing unlawful about the recording of NCHIs – in the Court of Appeal and won a second victory. The court ruled that the recording of NCHIs is an unlawful interference in freedom of speech and a breach of Article 10 of the European Convention on Human Rights.
We are proud to back Harry Miller in this case. Had he lost and had to pay the other side’s costs, we had pledged to help with that bill, but thankfully that won’t be necessary. Our General Secretary Toby Young was quoted in the Daily Mail and by Guido Fawkes:
The Free Speech Union is proud to have played a part in winning this landmark victory, but the lion’s share of the credit must go to Harry Miller.
Thanks to his courage and tenacity, we can all rest a little easier in our beds tonight, knowing the police are not about to knock on our doors because we’ve made an inappropriate joke on Twitter.
The ruling was widely reported by the Times, BBC, Sun, UnHerd and the Guardian, and our support for Harry’s case was noted in ConservativeHome and the Spectator. Toby wrote in Mail+: “When Humberside Police tried to intimidate Harry Miller, they picked on the wrong guy. They should be policing our streets, not our tweets.” Harry spoke to Spiked following his victory.
The Times welcomed the verdict with an editorial which concluded: “Once society punishes people for having the wrong opinions, there is no limit to the incursions on freedom that this seemingly benign principle will allow. The Court of Appeal has thankfully sounded the alarm.” Sarah Phillimore and Rob Jessel said the case capped off a year that will be remembered for having turned the tide against the official imposition of trans orthodoxy. You can read our full press release here and the judgment itself here. You can also watch our legal officer Karolien Celie explain the importance of the ruling here.
Professor Andrew Tettenborn of our Legal Advisory Council wrote of the ruling:
As a by-product, pressure groups and the easily offended will find it more difficult to silence those they do not like by reporting them to the police. Instead of having to show excessive respect to a complainant just because they are a complainant (or in police speak, a ‘victim’), the latter will now have a great deal more reason to do what they should have done all along and tell complainants, tactfully but firmly, that they cannot become embroiled in the policing of political or social argument.
Back in 2019, Harry told James Kirkup: “Free speech is a hill that we have to fight on. If we can’t express ourselves freely within the law, none of the other rights we have mean anything.” In recognition of his courage in fighting this case all the way to the Court of Appeal and striking such a major blow for free speech, one of our members has nominated Harry for a knighthood. We encourage our members to write to the Cabinet Office ([email protected]) in support of this nomination, as we have done.
Existing “non-crime” records should now be deleted
The barrister Adam King warned that existing NCHIs aren’t gone yet, and that the “perception-based recording” of hate incidents hasn’t ended. That’s true, but the College of Policing, which came up with the guidance on the recording of NCHIs in 2014, has already changed its advice in light of the Court of Appeal’s judgment. Until now, every time a hate incident was reported to the police and then investigated, it had to be recorded as an NCHI, even if there was no evidence that the incident in question was motivated by hostility towards another person’s protected characteristic. Henceforth, the recording of NCHIs should be at the discretion of police officers, according to the College’s new guidance, who will have to exercise their judgment in deciding whether the recording of the incident as an NCHI is a proportionate response. We think this means there is a strong case for asking all the police forces of England and Wales to review the NCHIs they have placed on record against people’s names – more than 120,000 of them – and delete those that don’t merit being memorialised in this way and we will be writing to the Chief Constables asking them to do that. Our hope is that rather than embark on this colossal labour, they will simply delete all of them.
Following the ruling, we joined others in calling for NCHIs to be deleted. Our Deputy Research Director Emma Webb said:
Given this landmark ruling, which confirms ‘non-crime hate incidents’ represent an unlawful interference with freedom of expression and that their recording on a police database is likely to have a ‘chilling effect’ on public debate, it is only right that all ‘non-crime hate incidents’ be scratched from police records.
Home Secretary Priti Patel announced that the Government will table an amendment to the Police, Crime, Sentencing and Courts Bill to curtail the police’s power to record NCHIs and strengthen safeguards on freedom of expression. She said: “Some current practices are having a dangerous impact on free speech and potentially stopping people expressing their views. This amendment will ensure every police officer abides by a code of practice, approved by Parliament, when recording such allegations.”
That, too, is excellent news. It means the College of Policing’s revised guidance on the recording of NCHIs will have to be approved by Parliament and we will be lobbying Parliamentarians to ensure that NCHIs can only be recorded in truly exceptional circumstances and never in a way that interferes with people’s freedom of expression.
Anti-lockdown activist Debbie Hicks cleared
Anti-lockdown activist and FSU member Debbie Hicks was found not guilty of breaching Covid regulations for organising a protest march during lockdown, the BBC reported. Many thanks to all those who donated to her crowdfunder. But the fight isn’t over for Debbie. She has at least three more cases pending.
Ex-Corbyn aide fined £10,000 in defamation case, while Piers Corbyn arrested for “burn them down” comment
Countdown star Rachel Riley has been awarded £10,000 in damages for a tweet posted by former Jeremy Corbyn aide Laura Murray.
Meanwhile, Corbyn’s brother Piers has been arrested for a comment he made about MPs who voted for lockdown measures. He told his supporters: “You’ve got to get a list of them… and if your MP is one of them, go to their offices and, well, I would recommend burning them down, okay? But I can’t say that on air. I hope we’re not on air.” Sam Leith asked if Piers Corbyn really is dangerous and whether this comment really did constitute an incitement to violence.
Cut “dead white men” from courses or we won’t promote you, UCL academics told
Academics in grade 8 jobs at University College London have been told to limit the number of “dead white men” included in course material, and “engage” with the university’s ‘Liberating the Curriculum’ initiative if they want to be promoted. We wrote to the Vice-Chancellor, pointing out that this was a breach of academics’ right to free speech and therefore probably unlawful, which prompted the Telegraph to write a story about the dogmatic requirement.
One academic, who remained anonymous, said staff and students were being hit by a “woke avalanche”. Our founder Toby Young was quoted in the story:
Insisting that anyone in a grade 8 job at UCL, or applying for one, has to remove ‘dead white able-bodied European men’ from reading lists, ‘check their privilege’ and ‘acknowledge the prejudice baked into their field’ is an infringement of their right to free speech and almost certainly unlawful.
Meanwhile at Oxford, a commitment to equality may become an “essential criteria” for job applicants, according to a new report prepared by the university’s Race Equality Task Force, which is also planning yet another campaign to ‘decolonise’ the curriculum. The document also recommended that students and staff should “continuously learn” about so-called “microaggressions”.
Senior Conservatives have recommended Kathleen Stock for a peerage after she was forced out of her job at Sussex by militant trans activists.
Anna Krylov and Jay Tanzman wrote for Quillette about the ideological capture of science, technology, engineering and maths. Anna compared the situation to her life in the USSR.
A German academic has been suspended by Sciences Po Grenoble for “Islamophobia” after a student campaign against him. President Macron’s government condemned the decision as “Islamo-gauchisme”.
The Scout Association has apologised to Maya Forstater after a two-year investigation for “misgendering”. Forstater had previously raised safeguarding concerns about the Scouts’ transgender policy, which she warned could mark the end of separate sleeping facilities for girls, and referred to a man called Gregor Murray as “he” instead of “they”, his “preferred pronoun”. Sarah Phillimore wrote for the Critic about the safeguarding risk posed by teacher activists “affirming” very young children who self-identify as a member of the opposite sex and want to embark on a course of life-changing medical treatment but lack the maturity or legal competency to make such far-reaching decisions.
Choreographer Rosie Kay, forced out of her own company for expressing her views on trans issues, has written about her ordeal for UnHerd.
In the US, two leagues for the broomstick-based Harry Potter sport Quidditch have dropped the name out of embarrassment. The issue? It was created by JK Rowling, who they say is “anti-trans”. Graham Linehan told the Mail on Sunday that a musical version of Father Ted may not be staged unless his name is removed from the credits, even though he created the TV series.
Comedian, GB News presenter and FSU Advisory Council member Andrew Doyle said that asking somebody for their pronouns was effectively compelling them to pledge allegiance to the trans worldview.
UCL has severed ties with Stonewall’s Diversity Champions programme, and Stonewall founder Simon Fanshawe said the campaign group was pulling people apart, with businesses “panic-buying” diversity training to avoid bad PR.
Oldham fans banned for “promoting dislike”
Three football fans have been banned after expressing “negative opinions” about Oldham Athletic AFC’s management, the Mail Online reported.
Self-censorship in the UK is widespread, poll finds
A YouGov poll from November, reported by the BBC, found that while just over a third of Brits recognised the term “cancel culture”, 57% nevertheless censor themselves on issues such as trans rights and immigration. Dame Maureen Lipman warned in the same BBC report that cancel culture could spell the end of comedy. She said a “revolution” was taking place and that cancel culture is endemic. That being said, the BBC is actually piloting an “anti-woke” comedy show, featuring many of the comedians who entertained FSU members at our two recent comedy nights. Robin Aitken welcomed the success of GB News in offering an alternative outlet to existing broadcasters.
The Thick of It creator Armando Iannucci has said: “What’s wrong with being offended? It’s good to be offended, because it tests your own beliefs. If you’ve got a certain set of beliefs and you can’t take a joke, those beliefs aren’t as strongly held as you might think.”
Philip Hensher asked what books we have been denied by a woke publishing industry afraid to publish anything heretical.
Ella Whelan and Alex Diggins wrote in the Telegraph that cancel culture has come to define 2021. You can watch our Battle of Ideas panel discussion on how to beat cancel culture on our YouTube channel. Don’t forget to subscribe!
Telegraph art critic Alastair Sooke spoke to museum directors about weathering the culture war and modern progressive sensibilities.
Another raft of classic films are having their classifications tightened to “reflect modern sensitivity”, the Times reported.
An advert by fashion chain Jigsaw has been banned on the grounds that it “objectified women”. It showed a woman wearing boots and underwear climbing over a fence. Former Vogue editor Alexander Shulman ridiculed this decision in the Daily Mail.
Crackdown on “racist” mountains
American mountains with “racist” names are to be rebranded. Squaw Mountain in Colorado is to be renamed “Mestaa’ehehe Mountain”, and both Redskin Mountain and Negro Mesa are to be renamed, the Times reported.
Protecting Freedom of Speech: is it time to revisit the Equality Act?
We begin 2022 with another Online In-Depth on Tuesday 11 January, when Toby will be joined by an impressive panel of legal academics and practicing lawyers to explore the various ways in which equality law is undermining freedom of expression. If you would like to join us on the night for Protecting Freedom of Speech: is it time to revisit the Equality Act?, register here.
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A very merry Christmas and a happy New Year to all our members. We’ve published this special video thanking you for your support over the last year.