Thread by @WeAreFairCop

It's 10.20am.

We are in court.

The public seats are nearly full.

Hopefully let the tweeting commence #FairCopJR

And we are off! Checking the state of the bundles and shuffling up to let more people sit. Now a very full house. #FairCopJR

Judge - this is a very important case... I am not concerned with a hotly contested debate; that is for Parliament...We will refer to biological sex in full knowledge of the controversy and not wishing to demean... #FairCopJR

<it's an indication of the peculiar state of play that this even needs to be said>

Opening by Harry's counsel. Plainly a very important case involving freedom of speech in the internet era. Won't go through all background facts but take the court to important documents. #FairCopJR

Judge confirms that tweeting is ok but otherwise please turn phones off. #JRFairCop

Judge taken to witness statement of Jodie Ginsberg - sets out the parameters to the GRA and the proposed changes. In particular, raises bone of controversy; replace GRC with simple self identification #FairCopJR

The involvement of the police in social media discussion about this. Judge interjects - want to lay down a marker. What is said against you is that recording a hate incident is not a sanction so not interference. And said your client is robust enough to comment.

Judge - suppose I find that combination of recording and remote potential for it to be disclosed and I find that PC Gul created impression that your client should stop - would all of that be sufficient to interfere with Art 10, not because it impacted YOUR client -

- but had chilling effect on others? Answer - yes. Recording under this policy, the publicity around what the police can do... if they had some deterrent effect on others that is sufficient - absolutely. #FairCopJR

Judge - this isn't just a statistical recording, its Mr Miller's personal details. So police underplay this. - Yes. #FairCopJR

<this seems to be a positive interjection - other side can't simply rely on Harry Miller being 'robust' - what about the impact on others?>

HM Counsel continues. There is a national debate and controversy. Judge - a lot of what your client tweeted did not make a profound contribution to the debate. Its provocative or vulgar abuse - you will need to think about this. #FairCopJR

Judge concedes that the song lyric is NOT vulgar abuse - it falls into the category of satire. Counsel - argues most of HM's posting falls into that category. But equally not for court to make a judgment on offensiveness.

Judge - but I am not making a value judgment if YOU are arguing your client is making a contribution to a debate. I have to consider the speech. #FairCopJR

Judge accepts that some of HM's posting is capable of contributing to debate but not all. Counsel - will need to look in context #FairCopJR

Further discussion about putting 'offensive' speech in context of national conversation. The consequences of amendment to GRA are far reaching #FairCopJR

Counsel directs court to Ms Murray's statement; Fellow in Criminology and describes this as 'fierce debate'. <Judge gets out highlighter> Impact also on academic community. Which we see from statement of @Docstockk #FairCopJR

@Docstockk Judge - I note in the Times this morning that Oxford Brookes have 'disinvited' a speaker. #FairCopJR

@Docstockk Counsel now turns to Guidance itself. It does not focus specifically on transgender issues. Derives from murder of Stephen Lawrence. Looks at definition of 'hate incident' - perceived by victim or •any other person* #FairCopJR

@Docstockk Points out that 'complainant' is referred to as 'victim'. Judge - are you saying that language must be directed at an individual? Or just posting on Twitter? I am only just beginning to understand what Twitter is! #FairCopJR

@Docstockk Counsel - one of the difficulties in this case is that different people see things in different ways. Judge - use of word 'victim' has particular resonance. Counsel - can't transpose what happened in Stephen Lawrence case to this context #FairCopJR

@Docstockk Judge - I clarify that my comments are part of the forensic process, I am not setting out a decided view but testing the evidence. #FairCopJR

@Docstockk Judge - this seems to be premised on someone being a 'victim'. So something must be said about someone even if they aren't aware of it? Counsel - impact of social media age #FairCopJR

@Docstockk Counsel - refers to the 'escalation' concept which is used by defendants as justification in this case. #FairCopJR

@Docstockk Judge - but how can it be a hate incident if no hate established - Counsel. That is our point. It is plainly disproportionate. Judge - does it mean that someone reads someone. Reasonable reader wouldn't see it as hostile. But someone does and reports it. Should it be recorded?

@Docstockk Counsel - it is not merely 'sufficient' to justify reporting if *someone* finds it offensive. It MUST be reported. This has clearly had chilling impact on academic community - again see @Docstockk statement #FairCopJR

@Docstockk Judge repeats this. So even if no objective evidence of hate, if a subjective report received it must be reported - Counsel - these are the plain words of the policy. Judge - I will have to hear from the police about this. #FairCopJR

@Docstockk Counsel - pause and consider the impact. Judge - could use a discretion not mandatory reporting? Counsel - we are not saying the whole document is flawed, we focus on the mandatory reporting #FairCopJR

@Docstockk Now looking at HM's actual tweets. Refers to his first statement. A retweet of a song lyric (the 'limerick'). #FairCopJR

@Docstockk There are a range of tweets and court is directed to some others. Reference to Jenni Murray included as 'hate'. Judge - this is a comment on crowd who protested against her. Counsel - consider context. Its a comment in an area that's hotly debated. #FairCopJR

@Docstockk There is nothing gratuitous about that - Judge, well apart from the last word. Counsel - etiquette on social media is 'relaxed' shall we say.... #FairCopJR

@Docstockk Judge - there is a sardonic tone? Counsel - yes. One may or may not agree with it but it is legitimate thing to say. #FairCopJR

@Docstockk Judge - we will go through each tweet as I think I am going to have to descend to determining what is legitimate contribution to public debate. #FairCopJR

@Docstockk 'Gloating bastard Harrop doing what he does best'

@Docstockk Judge - one is photo of woman standing next to a sign (rolls eyes) Counsel - one would not expect the police to be interested in this. #FairCopJR

@Docstockk continues through tweets. Counsel describes one as 'legitimate comment' 'Yup' says Judge #FairCopJR

@Docstockk Counsel - when you drill down and look at the tweets they all point to very lively debate that is out there. Defendant interjects - not disputing some tweets are method of debate. Judge - yes but I will have to think about this because of Article 10 protection #FairCopJR

@Docstockk Judge - some tweets do fall into category of vulgar abuse. The commentary is to some extent ex post facto justification. What was published is the tweets. Counsel - legitimate to look at context. Judge agrees. #FairCopJR

@Docstockk Famous tweet 'huh?'. This can't engage the police. Judge - 'yup'. #FairCopJR

@Docstockk Counsel - apart from the one tweet your Lordship has highlighted, struggling to see what is offensive. Judge - Freedom means the right to be told what we do not wish to hear. This is jurisprudence of ECtHR and the US Supreme Court #FairCopJR

@Docstockk Judge - how many followers did HM have at the time? 800 or 900.

@Docstockk Counsel - there then followed an anonymous complaint. Email and statement. Look at the perception of the complainant. #FairCopJR

@Docstockk Alleges 30 tweets are 'transphobic'. We have been though the tweets. Judge - the word 'phobic' is very strong and delineates irrational hate of something. #FairCopJR

@Docstockk Counsel - agree. And it is used in the context of a debate. refers to 'open season on transgender community' Judge - this is not evidence, this is polemicism. Counsel - YES but it goes to the perception of the complainant. #FairCopJR

@Docstockk Counsel - police should have considered this objectively Judge - are you saying this should have been critically evaluated. counsel - yes. #FairCopJR

@Docstockk Complainant was alerted to tweets by someone else. So raises issue we discussed at outset. Who is this tweet directed to? The complainant hadn't seen it but was alerted to it. #FairCopJR

@Docstockk that raises important issue - the people who are generating these complaints. Someone has referred it on to someone else to make a complaint. Is that person referring numerous tweets to the police? One can see the danger of this #FairCopJR

@Docstockk Counsel - very dangerous to make reporting mandatory of what is subjective perception #FairCopJR

@Docstockk Complainant asserts that HM is not 'above the law' and 'needs to understand this'. #FairCopJR

@Docstockk Complaint itself uses offensive language about HM. And asserts 'self ID is nothing to do with him'. #FairCopJR

@Docstockk Complainant then threatens - HM must know that this behaviour is no longer going to be tolerated. #FairCopJR

@Docstockk The perception of the complainant is clear. This goes directly to proportionality. #FairCopJR

@Docstockk Judge - in crime report PC Gun refers to HM as 'a suspect'
Counsel - yes <it seems that this Judge understands exactly what is going on> #FairCopJR

@Docstockk Judge - complainant says 'monsters' 'predators' 'weirdos' 'freaks' -HM didn't use that language.
Counsel - No. #FairCopJR

@Docstockk Apologies *PC GUL*

@Docstockk Counsel - HM says I have committed no crime. Complainant believes I have but has not been disabused of this notion. #FairCopJR

@Docstockk Refers to Henriques report - it should be the duty of the officer to investigate impartially. 'I believe' caused enormous problems in investigation around Carl Beech. Similar error here #FairCopJR

@Docstockk Counsel - HM shocked by last paragraph of the complainant's email - 'an offensive diatribe'. Passed on by police with no attempt to check veracity or give me ability to respond #FairCopJR

@Docstockk Counsel - now looks at what is recorded in the Crime Report. Defendant - Did you recieve yesterday the unreacted copy of the crime report? HM Counsel - I haven't had opportunity to take instructions about that #FairCopJR

@Docstockk Judge - we will work from redacted version. It is not satisfactory that documents come through the day before. I have a lot of paper and a lot of things to think about #FairCopJR

@Docstockk Judge - <laughs> it starts with the title doesn't it? 'Crime Report' #FairCopJR

@Docstockk Judge - we have 'crime report'. HM is a 'suspect'. 'Upsetting many members of the TG community' #FairCopJR

@Docstockk Counsel - visit was not to see if it was hateful but to see if should be reported as hate incident or hate crime. #FairCopJR

@Docstockk Judge - what do you say I should do about dispute of fact between HM and PC Gul? Counsel - you don't need to. Judge - hmmm I do need to consider effect even if I don't resolve specifically what was said #FairCopJR

@Docstockk Judge - remember old case from 1995 - if dispute in JR you take respondents evidence but I have never understood that!... seems pretty clear that visit followed by telephone call and HM complaints, all left him with impression police told him to stop. #FairCopJR

@Docstockk Counsel now addresses court on 'chilling effect' and impediment to free speech. Judge - just so I am clear, you have two pronged challenge. to policy - but even if that survives, the police actions here are disproportionate and violate Article 10 #FairCopJR - YES

@Docstockk Judge - one of the points against you is that you only attacked decision not to record, but you are challenging everything? - yes #FairCopJR

@Docstockk Counsel - This has caused significant stress and anxiety for HM and his family. That points strongly to chilling effect. HM's wife has provided two statements #FairCopJR

@Docstockk Judge - I can see no answer to broad policy challenge that HM kept tweeting. It may effect others who are less robust. But on narrower challenge to specific effect on him, if he carried on it didn't have a 'chilling effect'

@Docstockk Counsel - that depends on how you define 'chilling effect'. It isn't a term of law. Judge - he might change his mind and stop in the future? Counsel - precisely, it may become too much. #FairCopJR

@Docstockk Judge - how would this impact on HM wife. Not a hate incident against her name. Counsel - may be relevant to her that her husband named. that can be included in DBS check. #FairCopJR

@Docstockk Counsel - it may be deemed relevant for people to be told someone in her household is involved in hate incident. We simply don't know. But she has a fear about that #FairCopJR

@Docstockk Judge - this must be a rationally held fear. Counsel - we say it is. #FairCopJR

@Docstockk HM Wife was fearful and deactivated her Twitter account. #FairCopJR

@Docstockk Final primary document to which Judge is directed - the MacPherson report. Recommendations at page 78.

gov.uk/government/pub…

@Docstockk Racist incident defined as any incident perceived as such by victim. Important to understand the genesis of all this. replaced previous ACPO guidance which relied on perception of investigating officer. #FairCopJR

@Docstockk But as police found to be 'institutionally racist', their perception could not be relied upon. BUT it does not transpose to this context - see statement of @Docstockk #FairCopJR

@Docstockk Counsel - this is important and requires close reading. It may be reasonable to define a racist incident by perception but not a transphobic incident. These are not analogous situations #FairCopJR

@Docstockk Judge - does it come to this. Not my job to decide for either side of this debate. but if I use derogatory racist terms, its clear. But If a say a trans woman is a man, there is objective evidence to support that view. That is point @Docstockk is making - YES #FairCopJR

@Docstockk <this is probably the key, crucial, fundamental point and THIS JUDGE GETS IT>

@Docstockk Now Counsel turns to legal issues. Preliminary issue. Take common law position first. #FairCopJR

@Docstockk <not entirely sure why we even bother with common law when we have Article 10 ECHR>

@Docstockk Lord Justice Hoffman - 1994 Judge - I am familiar with these authorities. Freedom of expression is not there to protect pleasant speech. That is where its value lies. Most extreme expression in first Amendment of the US constitution #FairCopJR

@Docstockk Judge 'Its utility lies in exposing people to things they don't want to hear'.

YES
YES
YES

#FairCopJR

@Docstockk Judge - you are not suggesting police need legislation to gather information? Facial recognition technology violated Article 8 but authorised by police common law powers... but they have to do it in a way that is compatible with ECHR but source of this is common law.

@Docstockk Judge - it would be unlawful for Chief constable to authorise police to watch striking miners to consider economic harm. I was thinking about this last night. #FairCopJR

@Docstockk Judge - surveillance has to be for a legitimate police function. That is issue. Whether recording of these hate incidents is so legitimate. Counsel - and this is area of legislative debate! this is very important. #FairCopJR

@Docstockk TL:DR - common law recognises and protects freedom of speech as a fundamental right. #FairCopJR

@Docstockk Judge - you say there is a fundamental common law right that can't be curtailed - you just can't interfere with it? It is more absolute than Article 10 right which is subject to proportionality? Counsel - no... <this is difficult to follow> #FairCopJR

@Docstockk Counsel clarifies - common law right was never absolute, but as with Article 10 should only be curtailed on clear grounds. Judge - we have common law right that can only be infringed by clear statute or clear common law provisions #FairCopJR

@Docstockk Judge - and what police have done is too vague to justify interference with this right. Counsel - absolutely. Principle of legality. #FairCopJR

@Docstockk Counsel - this is a vires point. Police simply don't have the power. So it is NOT an issue of proportionality. #FairCopJR

@Docstockk Judge - you are saying NO POWER to record hate incident if not a crime? Counsel - I would have to be drawn to that conclusion. #FairCopJR

@Docstockk Counsel - no authorisation by Parliament. No authorisation by Secretary of State to override the claimant's fundamental human rights #FairCopJR

@Docstockk Counsel - even if there was authorisation, any curtailment of a fundamental right should go no further than is necessary #FairCopJR

@Docstockk So what is the rationale for the Guidance? to prevent escalation of criminal activity. No evidence that non crime hate incidents of this nature escalate into criminal activity, as supported by Dr Murray.

@Docstockk Judge - men in SL case making dreadful comments in a private house, so no crime committed. But point was they were on the road to doing it and ended up doing it. #FairCopJR

@Docstockk Dr Murray statement: no research to prove escalation into criminal acts. other side have produced no evidence. Judge - but could be said that the policy works! Data has stopped escalation! Counsel - but must be evidence based and none provided #FairCopJR

@Docstockk Counsel - it is for the STATE to justify their interference. If they say this policy prevents escalation, they will need to demonstrate that is what happens. Not an illegitimate aim - but no evidence. #FairCopJR

@Docstockk The only justification for mandatory recording of subjective perception is aim to reduce escalation. That's all that is said on the Defendant's behalf. That is not a proportionality exercise #FairCopJR

@Docstockk There is also lack of forseeability in the system and impact on discussion about matters of controversy. Lack of evidence about impact of recording hate incidents. #FairCopJR

@Docstockk for all these reasons little weight can be given to the Defendant's position. This concludes common law discussion. Now move on to Article 10 challenge #FairCopJR

@Docstockk Counsel - first is there an interference with right to free expression? Has it been proscribed by law? Is it necessary in democratic society? Much discussion already had but ECHR requires more 'structured' approach to considerations - but likely to arrive at same conclusions.

@Docstockk Judge - the way you put it, doesn't matter what label you put on it 'sanction' etc. - look at what happened. The effect as a matter of fact has proved interference with HM fundamental rights as has had chilling effect. Counsel - your Lordship has the point <o yes he does!>

@Docstockk Now tannoy! Evacuation in progress in Queens Building! Judge - that's not us! #FairCopJR

@Docstockk Now Judge and Counsel trying to talk over tannoy urging us to evacuate. Slightly concerning #FairCopJR

@Docstockk Adjourn for lunch now, assuming we aren't actually on fire. #FairCopJR

@Docstockk UPDATE Court has not burned down and the public gallery is open!! climb up twisty flight of stairs to right of court entrance and turn right and right again.

@Docstockk Had a Sun Exotic Pineapple and Coconut drink and a bag of crisps and am ready to go!

@Docstockk Hearing resumes: Looking at foreseeability of consequences. Law must keep pace with changing circumstances. British Film Classification case - Judge I was in that case! #FairCopJR

@Docstockk Principle of 'sufficient clarity' to allow individual protection from arbitrary interference. #FairCopJR

@Docstockk Something either has the quality of 'law' or it does not - no grey areas. In the present case, if the interference is proscribed by law has a yes/no answer. Impossible for a person to know how his communication will be perceived. #FairCopJR

@Docstockk This gives rise to arbitrary decision making. Judge - you will say if you make a communication to a group of people on Twitter, who knows what the reaction will be, you have no way of knowing #FairCopJR

@Docstockk Important point of principle: exceptions to Article 10 must be construed strictly. #FairCopJR

@Docstockk There is thus a presumption in favour of free speech. #FairCopJR

@Docstockk Judge - do you say these tweets should just never have been recorded? Counsel - the recording is mandatory. #FairCopJR

@Docstockk Judge - the complainant hadn't seen the tweets - someone told her. Counsel - we didn't know that! But the are required to record and carry out no inquiry. Judge - we now know the factual situation. It was brought to her attention #FairCopJR

@Docstockk Judge - <musing on how this comes to someone's attention> Counsel - offence was based on perception of offence by someone who was in communication with the 'victim'. Judge - who is 'victim' - person who draws attention to tweets? #FairCopJR

@Docstockk 'I was alerted to the comments by a friend of mine' - Defendant refers to PC Gul's statement. #FairCopJR

@Docstockk Judge - what if someone tweets over 2 weeks and first tweet says 'I will contribute to debate. They are not directed at anyone specific.' and then says things like HM said. How would that work with policy? #FairCopJR

@Docstockk Counsel - that's for the defendant to answer!

@Docstockk Third limb of Article 10 submissions - is interference with the right necessary in a democratic society? Even if the court finds against us on 'proscribed by law' interference may still be unlawful if not necessary. #FairCopJR

@Docstockk 'The Heckler's veto' is dealt with in skeleton argument - Judge pauses to read. #FairCopJR

@Docstockk Applying general principles to this case - we accept objectives are legitimate aims. But the means of achieving those aims are disproportionate and therefore not necessary in a democratic society #FairCopJR

@Docstockk Judge - are you saying policy would be saved if a reasonable person perceived it as showing hostility? We have looked at philosopher's distinction between this and race - nothing can save a racist statement but this is different? #FairCopJR

@Docstockk Counsel - it is not for me to construe policy but my initial response is 'no'. Judge - but it would provide help for someone construing the policy? Counsel - someone would look at communication and says 'this goes over line' and will be recorded. #FairCopJR

@Docstockk <I think it is being said and agreed with, that an objective element to this policy may save it BUT at the moment we don't have any objective element>

@Docstockk Judge - element of 'boiler plate' about this guidance. Doesn't really help the police officer who is not a lawyer to decide proportionality. Counsel - yes, its for the police to provide guidance #FairCopJR

@Docstockk Counsel - we have offered a powerful catalogue of reasons to show why this is NOT necessary in a democratic society. We say there is a breach of Article 10 in this case. #FairCopJR

@Docstockk Judge - no one is taking a limitation point as permission was granted and it has fallen by wayside. Defendant - I have 'notionally' mentioned it in my skeleton. #FairCopJR

@Docstockk Judge thanks HM counsel for 'very helpful' submissions. Now Defendant's counsel <booo!>. Dives straight into the issue of not challenging perception of claimant.

@Docstockk Judge redirects him - but who is your client? Defendant - that is set out in Mr Tucker's statement. 'College of Policing' owned by Secretary of State. It is a policy orientated body to give assistance to policing generally. #FairCopJR

@Docstockk Judge - lets look at this. It has some statutory power to set out guidance. Authorises professional practice. <Judge seems annoyed but I am not sure why> #FairCopJR

@Docstockk Def Counsel - if I can give a comparison... Judge - No. Give me a definition.
Def Counsel - force of the guidance comes from the extent the bodies using it think its sensible.
Judge - so if force does't like it?
Def Counsel - its not issued pursuant to statutory power

@Docstockk <ok I think I get it - Def arguing therefore that common law doesn't apply as guidance not issued pursuant to statutory power>
Judge - if Parliament wants to take away fundamental human rights it has to face up to consequences of what it is doing.

@Docstockk Judge - may be in territory that police have a power to gather this information but its the way they do it. But if the policy has no force of law and police can follow it or not... where does that take you?
Def counsel - I am not the one challenging it.

@Docstockk Judge - but you are relying on it. #FairCopJR

@Docstockk You have telephoned someone, visited them... on the basis of a policy that has no force in law
Def Counsel <splutters>
Judge - just give me an answer.

@Docstockk <what we are witnessing here I think is a good example of the 'clever lawyer's argument' which has zero merit and irritates Judges. Go on my son!>

@Docstockk Def Counsel - I would describe this as non statutory guidance.
Judge - I think we are all agreed on that <giggles in court>
Judge - please be quiet. These are really serious issues. This is court of law and not a theatre. #FairCopJR

@Docstockk Now moving on to definition of 'hate incident' - defined by reference to complainant perception. Police take that perception as it is. ... important to understand how the UK and Europe have actually responded. It hasn't come from now where and just one report #FairCopJR

@Docstockk We need to look at where it came from - what lead to this?
But now back to a preliminary point - the police have for decades recorded non criminal offences. #FairCopJR

@Docstockk Judge - but this is not just non criminal. It is non criminal incident that impinges on freedom of speech #FairCopJR

@Docstockk Judge 'don't take me laboriously through your skeleton'
<fair enough> #FairCopJR

@Docstockk Def Counsel 1998 ACPO - what was in place just before MacPherson report. Definition of racial incident.

@Docstockk Judge - this is closer to an objective test isn't it.
Def Counsel - yes, that is what MacPherson was looking at and this is important. Have we learned the lessons of the past? CoP thinks this case risks going back to the state of policy - Judge interjects -

@Docstockk - this isn't appropriate. I am very well aware of the sensitive on each side. This case is about legal principles. #FairCopJR

@Docstockk Judge - your broad point is that this policy has gestated through various iterations, product of considerable thinking and policy work over 20-30 years and thus less susceptible to a proportionality submission?

@Docstockk Def Counsel - it goes wider than this. WHY did it come into force <bold submissions - if Judge decides against CoP he is hateful bigot!>

@Docstockk Judge seems tetchy 'give me the high water mark of your submissions' #FairCopJR

@Docstockk Judge - is there somewhere in your evidence where the filter on individual perception is set out?
<Def Counsel doesn't appear entirely sure>

@Docstockk <I am afraid I cannot follow the Defendant's submissions now. Seems to be talking about historical recordings?>

@Docstockk <I think he is saying that the police should not be a filter as they have their own 'lived experiences' which won't be the same as minority communities. This is very hard to follow>

@Docstockk Take reporting from minority communities seriously - this is essential for the police to gain confidence from minority communities. We must gain confidence of marginalised communities - a key issue here.

@Docstockk Judge - rationale for 'the perception of victim' as crucial fact is that this feeds into community confidence? #FairCopJR

@Docstockk Stephen Lawrence Inquiry very important moment for police. Don't accept that transgender people face different scenario. They are a minority and marginalised. Challenges are not the same as the black community .. police here tend to be white, male, don't have same eyes...

@Docstockk <this is incredible stuff. And not in a good way>

@Docstockk Defence submissions are basically that police have 'no lived experience' of transgender community and thus can apply no critical focus to any complaint. WOW.

@Docstockk Judge - this is taking it too close to the underlying merits of the issue.
Defence Counsel - object to distinction between transgender and race issues. It is not right!

@Docstockk Naked appeal to Judge not to be a horrible bigot. Not seeing where there is any attempt to grapple with legal principles here.

@Docstockk Def Counsel - you could say its a fact that more black men in prison or boys get excluded from school more. These are objective facts but can be deployed in hostile way.

@Docstockk <PAY ATTENTION TO THIS - 'objective facts become hate speech if they upset people'>

@Docstockk Judge - Parliament has set out what are protected characteristics.
Def counsel - the very point is that you need protection.
<don't understand this>

@Docstockk <Def counsel - arguing that removal of any filter was result of long standing discussions? I think. This is hard to follow>

@Docstockk Judge - that is your pivotal point isn't it <that incidents must be recorded on perception of victim>

@Docstockk Judge - are you going to address me on this issue? Don't worry I will remind you... #FairCopJR

@Docstockk Def Counsel repeats AGAIN - the aim of the guidance is to improve the confidence of minority communities. And to encourage reporting of incidents.... #FairCopJR

@Docstockk <so basically this is worse than I thought. To absolve themselves of their shame over murder of Stephen Lawrence, the police will actively comply in the removal of our human rights>

@Docstockk <O dear, the defence have committed school boy error of 'shading' their documents in a way that now makes them difficult to read. this may be a mercy. We are now apparently back to historic ACPO guidance. I don't know why>

@Docstockk Judge - this is all predicated on being a victim. One of the issues I have to think about is how that fits in to someone tweeting - if someone just reads it! It isn't directed at them but touches on something they feel strongly about - even though we are in pluralist society

@Docstockk - and no one has the right to freedom from offence.

@Docstockk Judge - comments were made in public forum, not directed at anyone in particular on an issue being debated by Parliament.

@Docstockk Defence now talking about someone sending leaflets to a school or making a film. No, I don't know what's going on now either.

@Docstockk Judge - when you look at MacPherson - is that policy applicable and if so how - to someone who is NOT commenting to an individual but on a matter of public interest.
Defence people are victims if offended.

@Docstockk Judge - so victim is someone who is offended or who 'feels' attacked or subject to hostility because of protected characteristic whether directed at them or not.
Def Counsel YES

@Docstockk <HERE IT IS>

@Docstockk Judge - lets suppose HM didn't tweet. Gave interview to a newspaper. suppose the complainant in a different part of the country would never have seen it but is shown that article. Would that be recordable? Would she be entitled to contact police via online portal?

@Docstockk Defence Counsel - now talking about celebrities or political figures. <I think I must have fallen asleep and this is some weird dream>

@Docstockk Judge - what is answer to my question.

@Docstockk Judge - why have police been interested in what are just public statements of opinion?

@Docstockk Defence - clear that not all tweets were offensive
Judge - but complainant said ALL were 'transphobic'
Def Counsel - she obviously had a 'strong reaction' to what was said.

@Docstockk Def Counsel - complainant genuinely considers tweet offensive to her as transgender woman. Genuine offence. She was offended.
Judge - not disputing that. Will take witness statement at face value.

@Docstockk Judge - but I come back to question, which I don't think I have had answer to. If HM said exactly same thing to a newspaper or TV channel would that be recordable? #FairCopJR

@Docstockk Def counsel - it could well be
Judge - but he isn't a celebrity or political figure. Would a police officer looking at 6.1 onwards of guidance, would that be recorded.
Def Counsel. Well...
Judge TV interview would reach more than 800 people

@Docstockk Judge - why is television interview proportionate if reaches many more thousands of people? Is this about the journalistic characteristics? Does it exacerbate the freedom of expression angle? #FairCopJR

@Docstockk Defence counsel - not possible to define every situation. Why code does say 'proportionally' and act in accordance with other rights.
Judge - broadcasters also subject to code of conduct so been through some filtering mechanism.

@Docstockk Def counsel - and police have training in human rights compliance. Difficult to make decisions balancing rights...

@Docstockk More justification for reasons to moving to perception based recording. alleged this was done with thought.

@Docstockk <HM counsel has to interject as Defence attritbutes something to him he didn't say but I am afraid I didn't hear what it was.>

@Docstockk Def Counsel policy of reporting on perception in genesis for 20 years - it has gone to Strasbourg (the European Court of Human Rights.
Judge the European Commission on Racial Equality is NOT the Council of Europe

@Docstockk Def Counsel - is arguing that European law pushes us to monitor racist incidents.

@Docstockk Judge - do they define 'racist'
Def counsel - effective monitoring is precondition to deal with racism properly

@Docstockk Def counsel - European guidance same as MacPherson. It depends on perception of victim.

@Docstockk Apparently the British have 'taken the lead on this'. It is the recommended model across Europe and you can rely on this as an important tool. #FairCopJR

@Docstockk Def Counsel argues therefore there is strong justification for the police policy <but he has referred only to the guidance on racist incidents?>

@Docstockk Administrative convenience IS one reason for not applying a police filter to complaints, but it is just one point.

@Docstockk <its not a good sign when the Judge is more familiar with your bundle than you are>

@Docstockk Judge refers back to mandatory reporting. How can you have a 'hate incident' with no evidence of hate'.
Def counsel - we have to monitor level of hatred and keep track of it. Monitors for protected people. Their perception of their community. That's what its there for!

@Docstockk Judge - explain to me how this works. I ring up and say 'I am victim. I don't know how, I just think I am'. Does that get reported? It says it HAS TO BE irrespective of evidence.
What does it mean?
I just don't understand it?

@Docstockk <this defence case is dead in the water. Is my view>

@Docstockk Judge - if I ring the police and say 'I think someone said something offensive about a protected characteristic' does it get reported?
Def Counsel - I am not sure that has the level of information needed...
Judge but its IRRESPECTIVE of the evidence? Why doesn't this count?

@Docstockk Def Counsel bravely carries on
Judge - you can't have a hate incident without evidence of hate

@Docstockk Judge - so in each case hate is defined on basis of perception of victim. But how do you have a hate incident without evidence of hate
Def Counsel - it must satisfy that definition.
<tuts in court>

@Docstockk Def counsel - police don't demand you prove it really was directed at you, in Lawrence terms we have different experiences....
Judge - that is a different point.
#FairCopJR

@Docstockk Judge - you are putting gloss on it. It says IRRESPECTIVE of evidence. No question of proof. That is what I struggle with.

@Docstockk Judge - hate element in each case is the hostility expressed about protected characteristic.
I think it means is that the sort of scenario I put to you - someone shouts something at me in aggressive way, not quite sure what it is... but it doesn't matter if I just perceive it.

@Docstockk Judge - that is the only way to make sense of this.

<quite>
#FairCopJR

@Docstockk <We are now going round and round and round in circles. Def counsel again attempts gloss of 'proof' - Judge corrects - it doesn't say that>

@Docstockk Judge -you are struggling to give me a definition of what this means so how can you show its sufficiently precise etc?
Def counsel - its very simple actually...loses train of thought..

@Docstockk Judge - so on my example, I am a victim of hate incident, but I didn't hear what was said. DOES THAT GET RECORDED
Def Counsel needs to turn his back.
<I bet he does>

@Docstockk Def Counsel - on your example the person would not have conveyed the information necessary to record a hate incident.

@Docstockk Judge - so if I ring up and say I am a victim, the inquiry stops there
Def Counsel - I am not sure. The police probably want to understand
Judge - but PC Gul had already recorded it before making inquiries

@Docstockk Def Counsel - the police will probably want to know more about it! Will ask for elaboration
Judge - I think I can see what is being got at. I have pressed you on that and conscious of time.

@Docstockk Court will finish at 4.15.
thank goodness.
I can't take much more of this.

@Docstockk Still talking about perception based recording and the reasons for it.

@Docstockk Judge - you say this is a legitimate policing function to build a picture to see what is being said over time and in different areas to preserve order in society. And you have evidence to link collection of non crime data with suppression of crime - YES

@Docstockk Judge - you say lawful basis to gather information because of escalation
Def counsel - but also building confidence in community.
Judge - but heart of this must be to see how this targets dealing with crime.
Def counsel - that's only one!

@Docstockk <note to aspiring lawyers. When a Judge tells you what he thinks the case is about, you really do need to listen>

@Docstockk Judge - police powers are largely but not exclusively statutory. common law powers, facial recognition etc. You would say recording non crime hate is within that penumbra of powers.

@Docstockk 10.30 tomorrow freedom lovers!
#FairCopJR