Thread by @WeAreFairCop

TODAY. 2pm.

@HarryTheOwl101 in the Court of Appeal. Link to live streaming below.

Why is this important and why should you care?

judiciary.uk/you-and-the-ju…

Its been 2 years since Harry’s thinking was first checked by PC Gul - described by Mr Justice Knowles at the first hearing as behaviour akin to the Cheka, the Stasi and the Gestapo.

Read the first judgment here.

judiciary.uk/wp-content/upl…

In that time over 120k ‘non crime hate incidents’ have been recorded. The police claim this is ‘essential’ to prevent our ‘escalation’ into criminality - but when asked, not a single force could tell us what they did with this data, other than disclose it to potential employers.

Harry says this is wrong as an unlawful breach of our Article 10 rights to protected political speech about issues of sex and gender.

We hope he wins. But if he doesn’t, @SVPhillimore and Miss B are following close behind with further challenges.

The Court of Appeal have chosen to live stream this case in recognition of its status as ‘legally significant’.

We are really glad that decision was taken and hope many will watch as the hearing unfolds or see it later on YouTube. This matters to us all.

15 minutes to go! Hopefully will be permitted to live tweet and will use #FairCopAppeal.

And lots of luck to @fairplaywomen who get judgment at 2pm!

And we are off! Ian Wise and Mr Armitage for Harry Miller. Will refer to IW. Housekeeping about bundles and timing. IW will be all afternoon and some time tomorrow. No difficulties forseen in allocation of time. #FairCopAppeal

Court 71
Before The President of the Queen's Bench Division
Lord Justice Haddon-Cave
Lady Justice Simler

IW opens - general introduction to Hate Crimes Guidance - contrary to common law and ECHR. Turn to 'offending parts' of HCG in core bundle. The 5 monitored strands - includes 'transgender' but this case is not just about transgender issues.

IW notes that these are differently framed to the 9 protected characteristics of the Equality Act. HCG focuses on a smaller list - 'sex' is NOT included.

Now looking at definition of 'hate incident'. Any non crime incident perceived by ANYONE to be motivated by hatred towards a monitored strand.

Hopefully court appreciates that under GRA 2004 there is now a procedure for a person to change 'gender'.

[Conflation of sex and gender is frustrating but a direct consequence of the deliberately poor drafting of the GRA]

Harry Miller's case arises from his direct challenge to the notion of 'self identification' - such people are often called 'gender critical'. Refers to previous evidence of Jodie Ginsberg and @Docstockk

The perception of the victim OR ANY OTHER PERSON is the 'defining factor' as to whether any incident is recorded as a 'hate incident'. If the facts do not indicate a crime, should be recorded as a 'non crime hate incident'.

But not appropriate to record if someone has no knowledge of the victim and its for some political or other motive - this is to catch people who are commenting on what they have read in media.

'Secondary victimisation' - IW invites the court to read it. This is part that says no challenge of the 'victim's' rationality or motivations is allowed as this is 'secondary victimisation'.

This points to 'an uncritical acceptance of a complaint being made without any investigation or inquisition into their veracity'.

Chapter 6 of HCG deals with 'hate incidents'. Recording is MANDATORY. The provision refers repeatedly to 'victims' using the familiar language of the criminal justice system.

Para 6.4 raises issues of public perception of this policy and injuncts police not to 'over -react' and then refers to an 'appropriate response' which is compatible with the Human Rights Act. We say that this doesn't override the mandatory provisions - its how police act.

There is NOTHING in this policy which suggests human rights considerations can override the mandatory recording requirements.

JUDGE poses question - IW refers to actions of Humberside. Actions of police were found to be wrong.

Judge - so it shouldn't have been recorded?
IW - what Knowles J said was that the policy was lawful, the recording was lawful but the actions of the police (going to see Harry Miller etc) were unlawful.

IW: what we say is that Humberside's actions were found incompatible with HM's human rights - but so too is the policy itself.

Also instructive to look at the crime report in this case. Striking to note that HM, who made lawful comments on Twitter, is the subject of a 'crime report' in which he is called 'a suspect' of a 'primary offence'. This report remains on the record.

Judge - tell me how this is compiled.
IW - we don't have evidence how this particular one was compiled, but generically it is automatic. Recorded and passed on to local police force. Assume administrative.
Judge - kept locally not on Police National Computer?
IW - not sure.

CoP counsel confirms - doesn't go on PNC in this form. This is kept on local police records
JUDGE - computer records, stored on computer which is searchable and available to other forces?
CoP - not necessarily.

Cop - there are protocols.

[Court wants to hear about them. Interesting.]

Cop - this is Humberside form, will take instructions.

JUDGE - how does this comply with National Standards for Incident Reporting? Have a look at that.

IW: This is not untypical with how other forces record.

IW: Decision below re issue of 'common sense' - there is NOTHING in the HCG that provides guidance on discretion to 'inject common sense' to weed out frivolous cases. One would expect it to be in policy and understood by those operating it.

in any event, 'common sense' is NOT the appropriate test to determine if someone has a NCHI recorded. One officer's 'common sense' might divert from another's. It would lead to arbitrary decision making which is inimical to lawful decisions.

IW: Harry Miller is an intelligent man with sincere belief in what he was tweeting about. Contrast with findings made by Knowles J about the 'victim' Mrs B - 'operating at the outer margins of rationality' and 'the terms of the complaint were on any view, extreme'.

IW: To uncritically accept complaints of such a nature simply cannot be unlawful, particularly in context of active debate about change to legislation.

[THIS IS THE HEART OF IT ALL]

What Humberside did was give Mrs B the 'heckler's veto' from the Hungarian case. We say that it was not the inappropriate actions of the police which gave her this veto - but the uncritical recording of her complaint, as required by the HCG.

IW: Harry Miller does not object to recording of NCHI so long as they are relevant to police functions. Self evident the police have this power and have done so for many years, under common law powers. BUT there is a difference between info routinely stored and info in this case.

Sorry erroneous 'un' there! It can't be LAWFUL.

What we have here is a NCHI which requires an element of evaluation and judgment. It is NOT an objective fact such as 'X was sitting in his car at 3am' . They have an unwarranted marker of authority - to the general public and including Mrs B!

Risk that public see this as recording of something which is a fact and which is correct!

[VERY IMPORTANT POINT]

Appreciates the importance of the Macpherson report but need to reflect on what he actually recommended. He wasn't concerned with Articles 8 or 10 but the underlying concerns about racial crime.

Recommendations 12 is important. Recording of racist incidents. Any incident perceived to be racist by victim or any other person. This is root of self perception. But at para 13 this says crimes and 'non crimes' must be reported and investigated with EQUAL committment.

[SIGNIFICANT POINT - Macpherson was NOT recommending mandatory recording of the reports of those 'on the outer edges of rationality']
IW: self perception MUST be balanced by investigation.

IW - a mere reliance on the Macpherson report simply isn't good enough.

End of background points and now the 'hard edged issues'.

5 issues. First 2 relate to common law, the others infringement of Article 10 but we say outcome is the same in any event. But important to have in mind the harmony between the common law and ECHR jurisprudence.

First point re principle of legality. Knowles J rejected submission that this is not limited to a tool of statutory construction. Position now clarified by UKSC in Miller/Cherry case.

This concerned the lawfulness of the prorogation of Parliament re Brexit. We are concerned with the effect of the exercise of the common law power to prorogue Parliament. effect on fundamental consitutional rights.

What are the limits on the power to prorogue? Invites court to read paras 49 and 50 of the judgment.
[WARNING I suspect I am not going to be able to follow this!]

[AND BY THE WAY WELL BLOODY DONE @fairplaywomen !]

[Interim relief granted. Guidance must be changed to remove all references to documents other than birth certificate and GRC. Permission given to bring JR]

JUDGE - how far do we go with this? It's academic commentary and we are guided by the decisions of the court.
IW: yes, but what UKSC said in Miller/Cherry is entirely supportive of our case and this academic authority comments on legal implications

JUDGE - we determine the court's decisions, we don't adjudicate between different academic opinions.

JUDGE - Miller doesn't refer to the principle of legality at all.
IW - anxious to draw this out.
[As predicted, I'm lost now]

Short point is that Knowles J was wrong to say principle of legality was ONLY a tool of statutory interpretation. It is not limited only to that.

JUDGE - what principle do you say should be applied?

IW: That the common law cannot be used to undermine the rights of citizens without reasonable justification.

JUDGE - what does that mean?

IW: That common law is allied with ECHR.

JUDGE: What does this add to your argument?

IW: to say that the common law is in harmony with ECHR

JUDGE - if you are right about this 'kite that is flying' this would over turn a great deal of established law?

IW: yes. But goes back to principle of Hoffman LJ as he was in Central TV case.

IW: point is expressed with characteristic robustness - the right to say things that right thinking people think offensive - this is subject only to limitations laid down by common law and statute.

[Interjections from court - Miller/Cherry does not mention principle of legality. Clear concern that IW inviting over turning established law]

JUDGE - sorry maybe I am being very slow but I don't understand this

{thank goodness}

JUDGE - I don't see where Miller/Cherry gets you.
IW - the common law can't undermine the fundamental rights of the citizen without reasonable justification.
JUDGE - that is circular? You are saying the common law can't undermine the common law.

IW: but we get to the same result in any event.

JUDGE - you are certainly on more conventional ground on your Article 10 arguments!

[Feeling degree of relief now. If Judges don't get it, I am less shamed by my incomprehension at this point]

[AND BTW GOOD LUCK TO HELEN AND GLINNER ABOUT TO ADDRESS THE HOUSE OF LORDS!]

Second ground of appeal - Judge didn't address issue of recording where there was no evidence of hate. He said he would look at proportionality.

JUDGE - you can't really quarrel with this approach if common law argument doesn't add anything?

IW; maybe this argument is subsumed by Article 10 but its still a good argument. A straightforward rationality challenge with which the courts are very familiar. The policy is irrational. It MUST be recorded irrespective of any evidence to identify hate element. Defies sense.

How can we have a hate incident where no evidence of hate? Impossible to understand how this can arise.

[This is crucial point and part of me wonders whether it could have been made more quickly]

Back to Mrs 'outter margins of rationality' B - she has to be recorded as hate incident.

JUDGE - is that what Knowles J said? Didn't he take a more nuanced approach?

IW: He thought police would inject 'common sense' but no evidence they ever do!

IW: take a different example - suppose a citizen communicated something that was intended to be positive to a protected strand and it was misconstrued and thought to be hateful. Again, a lawful communication has to be recorded as NCHI. Completely irrational.

JUDICIAL HUMOUR - this is a non crime non hate incident?

IW yes and nothing to do with the police. We are free to do what we want unless there is a law against it.

JUDGE - but Knowles J did find deliniated circs where it would NOT be recorded para 209 of judgment.

IW got secondary victimisation wrong

JUDGE - we think he meant to refer to another para of the HCG

[Reference here is to 'malicious complaints'. As @SVPhillimore found out the police require 'cateogorical evidence' of malice]
IW: this doesn't say you wouldn't record
JUDGE - we are reading it backwards. Should we start at 1.1.2?

IW: but how would police KNOW its malicious when no requirement for investigation?

{VERY IMPORTANT POINT}

IW: no procedures in policy to see if something is appropriate to record. Only guidance is in response to media/internet stories or political motives.

JUDGE - seeks to cover both hate incidents and hate crimes?

IW returning to the mandatory recording aspect.

JUDGE - what do you say about 1.2.5 second para? second sentence ' not to falsely accuse an innocent person'.

IW but that doesn't mean its not recorded. Means police dont knock on door.

IW And back to fundamental problem - with no investigation how does anyone know if its malicious or not?

[EXACTLY]

IW: and underpinning is the Article 10 right to freedom of expression - court must consider rigorously the irrationality of the provision.

JUDGE - how does Henriques report help us? Make the argument on the document/policy we are considering

IW: shows the danger of relying on uncritical reports

Henriques recommendations - police must investigate with open mind and impartially, recognising that false complaints are made. Very serious consequences can flow from not having rational policy to require complaints to be understood and investigated.

IW: this factors into Article 10 argument and in particular when one is considering fair balance.

Now turn to Article 10 challenges.

IW : identify 3 errors in court below when deciding that HCG did not interfer with Article 10. Judge correctly recognised that a very broad understanding of what limits freedom of speech, accepted that NCHI may be disclosed BUT nevertheless found no interference and was wrong.

IW: the low threshold for interference was CLEARLY met here.

Look at distinction between policy interfering with Article 10 and actions of the police.

Impossible to see how judge arrived at conclusion he did re the policy

JUDGE but leaving aside issue of disclosure for the moment and looking at what might deter expression - do you submit the recording is a deterrent and why?

IW: we see the impact of the recording alone on the evidence of HM and his wife. Para 257 of judgment. para 40 HM witness statement.

JUDGE your point is that the manner of recording 'hate' and 'suspect' in a criminal data base?

IW: yes. HM reaction same as anyone's would be. No one wants to be recorded in this way.

JUDGE This is the chilling effect you are talking about

IW: YES

IW: HM felt deep sense of personal humiliation - Knowles J missed out that first part of sentence. Wasn't related to what PC Gul had done - it was the FACT OF RECORDING.

[CRUCIAL POINT]

IW: so what is the impact and is it reasonable?

JUDGE - the mere apprehension of recording has a chilling effect on society? We would all be at risk of this potential recording?

YES YES YES

Takes court to Harry's wife's statement. She expresses her interest in this issue. Goes on to talk about HM's interaction with the police and the impact on the family - daughter is a police office. Astonishing! these were lawful communications!

Judge - so dual approach to husband, wife and then physical approach to daughter.

IW: Wife makes second statement - read para 2. A perfectly rational reaction. We say clearly passes the low threshold of interference with Article 10 right.

IW: Judge below adopted conflicting approaches to actions of police as opposed to operation of policy. Should have applied same approach to both and therefore would have found threshold met.

IW: Judge below commented that police minimised what had occurred and it wasn't compatible with free speech in a democracy. He was absolutely right! but that analysis applies equally to the policy!

JUDGE - are you going to take us to passage where Judge explains the distinction between the actions of the police and the mere administrative actions of recording?

IW: which para?

JUDGE: was rather hoping you would tell me.

IW: that is the point I have already addressed the court upon, where its asserted police have discretion to exercise common sense. We say this is wrong. 'mere recording without more is too remote' - in our submission that is non sequitur.

Now looking at Turkish case on Article 10. Turkish criminal code criminalised 'denigrating Turkishness'. A professor specialised in Armenian genocide, matter of considerable controversy in Turkey. Investigation against him terminated. Was protected expression under Article 10.

The professor brought a claim in Strasbourg claiming that the Turkish criminal code was infringement of his Article 10 rights REGARDLESS of withdrawal of prosecution. It was the POTENTIAL for investigation which was continuing violation.

Turkish Gov contested any interference. Court concluded that although professor not convicted, the criminal reports filed against him were a harassment campaign. The mere fact that a future complaint could be filed caused him stress and breach of Article 10 rights - very wide.

JUDGE - let me ask about mechanics. The fact that the police record doesn't mean individual is spoken to. So what do you say about mere recording?

IW: the individual has a right to know what records are kept. That could come up on enhanced DBS

JUDGE I follow that. But there is huge number of incidents recorded and not practical to look into them but important to record data

{BUT WHY IF NOT INVESTIGATED?}

JUDGE - it may or may not come up on DBS check. What is your case on interference where individual not approached or spoken to?

IW: it could have a detriment to them, resulting in impact on freedom of speech.

JUDGE - is it the potentiality of it being recorded means people would be fearful of expressing themselves?

IW: yes that is my case, that is what Turkish case says.

JUDGE - what do you say police should do?

IW: they should investigate. That's what Macpherson says.

JUDGE - every complaint? Is that practical?

IW - would focus police minds!

IW What is point of collecting all this information if of very limited or no value?

Judge - how should they record the call.

IW They must record an allegation made, that is distinct from calling it NCHI

IW not for us to write their policy but IF the police then investigate and made a decision to properly record at low or high level then that would be less objectionable.

JUDGE - if the complaint said 'this is a hate crime' what do police do.

IW: record allegation and investigate. Allegation could be frivolous or ill founded and then expunged from record or recorded as ill founded.

JUDGE - police have to put call into some kind of category. A call comes in, complaints are made. Are you saying police shouldn't have categories?

IW: just step back - police say they have 'vast amounts of information' can't possibly investigate. That's the Stasi effect!

IW: this is exactly what the ECHR was formed to deal with! precisely this abuse of information by the STATE. It's not good enough.

[YES WELL SAID]

IW: Now looking at 'prescribed by law'. Shortly, the Judge misdirected himself about interference. But is the interference allowed? Article 10(2) qualifies the right of freedom of expression. We say Judge correctly directed himself to relevant law.

Can anyone predict that a person such as Mrs B 'on the outer margins of rationality' would behave in such a way?

JUDGE - he found Mrs B's complaint should not be recorded?

IW NO! That's the point. He said it should! That is one of the very curious things about his judgment.

IW: he was very strong about the unlawfulness of the police action but said it was ok to record. This is bizarre. It is ludicrous to say a citizen could predict Mrs B.

[point here is that the police are saying we can all escape being recorded if we just stop being hateful. This does not take into account the irrational complainant]

IW: Thus these provisions do not have the quality of law, as they are not foreseeable. And thus we don't even get to proportionality - that's what happened in the Turkish case. If interference is 'not prescribed by law' end of case - automatic violation of Article 10.

IW just making two more comments, mindful of the time. example of Professor Stock being recorded. She wouldn't have any idea that someone would take umbrage at her academic work which would then be reported. Impossible for foresee. Other example is a High Court judgment.

under these provisions, impossible to foresee if a complaint would be made about the Judge. It is uncertain and uncertainty is contrary to the rule of law.

IW now has only the proportionality limb to deal with but that will only take 15 minutes.

Court will sit again tomorrow at 10.15.