Ready in Court 5.
wish list for today
Counsel who can project.
Lists things that he will cover this morning.
In reverse order to counsel for HM.
Start - issue of communication to whom.
Judge - but that isn't the same situation. Is that like the situation where someone goes out looking for things to be offended by? ... she had a choice about how she reacted to someone showing her.
Def Counsel <warily> yes
Judge - PC Gul has filled this in. But he doesn't have authority to record. I want to see the actual document entered onto the data base please. .. which bit do police fill in?
<seems to be first two boxes>
Humberside counsel takes him through it.
<At least 28 pages to this form! Crikey!>
Humberside - we appreciate this may have been over redacted. Only thing that should be redacted is complainants identity
Judge - may I have the unredacted document
<handed up> #FairCopJR
<Judge's face is interesting. Pity we can't take pictures>
Points have been made about visits to workplace etc. but look at what policy says about response at pg 369. Recognises sensitive nature of this. #FairCopJR
<NEXT UP - what religion IS the Pope again?>
Judge - lets pretend there isn't a new policy and deal with this one.
<Judge may issue draft judgment on issue of 'belief' only>
Judge - thank you. I think I probably know enough to know about how European courts treat proportionality.
<we are now apparently on the DBS disclosure point>
"I can't find the pagination I am afraid"
Young lawyers - KNOW YOUR BUNDLE
Def Counsel - thank you
Judge reads - this guidance does not fetter police taking decisions in accordance with the law
Judge its a bit of strange submission to say it falls into category of poor behaviour. Its been recorded as a hate incident
Def counsel <flounders> its like tweets, he doesn't know where they will be disclosed.
Def counsel - perhaps we are at cross purposes.
Judge - I am sure it is my fault.
HM Counsel confirms he is indeed saying this.
<So HM is safe unless he wants to start 'caring for the transgender community>
Def Counsel - seems to be saying police can't disclose it or it would be unlikely <SO WHAT IS THE POINT>
Judge <tetchy plus plus> I just don't understand that. Why is it not disclosable. Give me an example. #FairCopJR
<I hope he does>
Judge - I know. I have read it.... complaint is that HM has attacked community. So you are in territory of harm to others
Def Counsel - she is not my client
Judge - I put it to you to refute proposition that someone might consider these tweets pose risk of harm
<Junior counsel - don't lecture judges about the law unless they expressly ask you>
Judge - taking risk genie out of bottle and you can't control where it goes
Def Counsel - dispersal is inherent
Def Counsel Um... we say 'no' but if it is its 'very low level'
Def Counsel - NO.
Judge - If the State action in response to freedom of expression has as a factual consequence a chilling effect, even if not a sanction it is an interference?
Def counsel - we take issue with 'chilling effect'.
Judge - even having to print a right of reply is capable of being an interference. That isn't a 'sanction' in sense we understand it #FairCopJR
Judge - I have written several text books
Def counsel - the policy is lawful!
Judge - <recoils> Your point is straightforward. Policy requires entry on data base. That's as far as it goes.
Def counsel - the primary purpose is to record and monitor the area
Final point on chilling effect - sets out legal approach in skeleton argument. Foreseeability, issue of discretion. In short ... <I then lost track>
<Hints given. Should be taken>
I understand your case on why policy is lawful in a classic targeting victims sort of way. The young black man walking down the street being racially abused.
But how does the policy cater for the sort of situation here?
Def Counsel - purpose of policy is to protect communities not individuals. Its about non crimes.
<we do indeed>
<this is second time Judge has repeated this phrase and I anticipate it will form part of his judgment...>
Framework by which police exercise their discretion with reference to national decision making model and then what actually happened in this case with actions of Humberside police.
Judge - no
Counsel for P - no, recordings after the fact.
Judge - what was the risk in PC Gul's eyes?
JUDGE - NO IT WASNT. I invite you, you are hear I am afraid to justify the police's actions, which tweets gave rise to PC Gul's decisions? His statement doesn't distinguish and that is one of the difficulties you have got
Counsel for P - could be something under the Public Order Act ....
Judge - you will be familiar with phrase ex post facto rationalisation. Factors not necessarily in their mind at the time. Persuade themselves justified.
Counsel for P - s127 Communications Act offence. and Protection from Harassment Act.
Counsel for P - would need to assess if behaviour causing anxiety etc. I am not able to identify a particular tweet and say 'if 2 more would be harassment'
Counsel for P -could be helpful to know what was said in HM defence? He can't be criticised for wanting to secure another perspective in the information gathering phrase
Judge DECIDE WHAT
Judge - did he think he has power to overturn the recording.
Not dealt with in statement.
Counsel for P - CoP guidance does say it can be removed. page 348.
Counsel for P - NO
counsel for P - but he had other motivations. Applying national decision making model. Alerting individuals of their bad tweeting.
HM certainly left with impression he's 'warned off'. HM makes complaint and Humberside reiterate risk of escalation to criminal offence.
Judge - what did he mean by escalation? More tweeting? or more vituperative tweeting?
<but come on police. what is the reality of the impact of this kind of intervention?>
You have to deal with 'such comments'. the same type of comment.
Counsel for P <mournfully> I will come back to this at 2pm
Counsel for P wants to step back from just one letter and look at wider context. Repeats PC Gul not seeking to restrain speech. 'Escalation' refers to content and nature.
HM tweeted 'trans women are not women' AFTER PC Gul visited so he didn't perceive tweet as criminal?
Judge - isn't fair meaning is that the message the police wished to convey is 'stop doing this or you are committing a crime'
Counsel for P - no, he specifically advised you can continue doing what you are doing ,?!?
<I suggest we don't hold our collective breath for any definition of 'community'>
Counsel for P - er, I am not referring to criminal harassment
Judge - in ordinary English words, he wasn't harassing anyone he was conversing with those who elected to follow him on Twitter.
Judge - I am afraid you will have to give me a specific reference to where it says police role is to act in community mediation ...give me the reference please
Counsel for P - due regard to need to foster good relations...
Judge just a second - reads - doesn't say anything there about acting as community mediation service
Counsel for P - its almost irrelevant what it means
Judge - what about internet stories? If you just read it on the internet you aren't really involved in it?
Counsel for P - that is distinct from means of communication
Judge - that is for ME to decide.
Counsel for P - we know that wasn't outcome as he continued tweeting
Judge - I take point, not conviction or fine etc.
Counsel for P - chilling effect can only follow a sanction
Judge - its US Supreme Court jurisprudence from 1950s. Accept no sanction in classic sense, accept all of that. but HM Counsel says 'take a step back. Look what happened. Threat of proceedings. All together has chilling effect'.
Counsel for P - has to be something sufficiently serious. Minimum line above which chilling effect can be found.
Counsel for P - example of sanctions that lead to chilling effect.
Judge - what is minimum line?
Counsel for P - these two cases!
Judge - cases are always fact specific. Fact there hasn't been another case is neither here nor there.
Counsel for P < >
Judge that would clearly be an interference.
Counsel for P <ploughs on to deal with point>
Judge - Gender reassignment - someone who has surgery
Counsel - all the references to protected characteristics are simply wrong. They are confusing them with the protected strands
Judge - your point is that transgender as identified in CoP guideline is NOT a protected characteristic
<finally this point is made. We can see the legacy of the Stonewall 'training' here and frequent misapplication of the EA>
Whether actions of police taken as a whole are Article 10 interference
If it was interference was it disproportionate and why
HAS ALREADY ARTICULATED
ALL THE FACTORS
ON WHICH WE WOULD RELY
<over and out>
"Victim has herself been making derogatory comments"
LET THAT SINK IN
HUMBERSIDE REDACTED THIS
'Victim' is not vulnerable and they tried to hide this.
If complainants comments directed particularly at women who hold TERF views that wouldn't be a protected characteristic.