Thread by @WeAreFairCop

DAY TWO Court of Appeal.
not sure if 10.15 or 10.30 start but off for fresh coffee.

Join us #FairCopAppeal

judiciary.uk/you-and-the-ju…

https://twitter.com/thereclaimparty/status/1369578513486016513

IW continues: it was NOT an objective fact that my client had committed a 'hate incident'.

Now issue of proportionality. What is the correct approach on appeal? Will need to establish a significant error of principle. We say there were.

IW: looks at speech by Lord Sayles

JUDGE - we have observations from the Supreme Court and that is the right place to turn.

IW: Broad starting point is that court should take 'hands on' not 'hands off' approach. We say significant six errors from first Judge.

preliminary point - he refers to run of common law cases that run unacceptable risk of unlawfulness. We say that's inapt for ECHR cases.

We say that this policy is unlawful per se.

JUDGE - it wasn't your case below that policy unlawful because it gave rise inherently to risk of unlawful decision?

IW - that wasn't way we put it, but its part of proportionality analysis.

IW: First error identified, Judge proceeded from wrong starting point. He said level of interference with freedom of expression is low, but this confuses test. It is a low test. Don't confuse with impact of policy.

IW: we say this policy has a profound impact on freedom of speech. To start from assumption its low level is to impermissably minimise value of freedom of speech in democracy.

JUDGE - you need to separate two things out. Did he set wrong test and fact you don't agree level of interference is low. These are two separate points.

IW: he may conflate the two. But evidence demonstrates interference isn't low in this case.

JUDGE - but that's evaluation by the Judge. He may have concluded that recording without more, IS a low level of interference when compared with cases where there is criminal investigation. You are challenging his evaluation NOT reasons which is difficult to do on error of law.

JUDGE - Knowles J said its a low level of interference so I weigh that against the benefits. Its evaluation. Show us the parts of the judgment you are challenging?

IW: para 226. Satisfied overall objectives justify threat to freedom of speech which is low.

IW: but Judge does not say WHY. He says there was unlawful interference by the police force at para 257. We say by saying interference as 'low' the Judge was wrong and failed to have proper regard to all the evidence.

IW: So when he conducts the balancing exercise he starts from the wrong position and that infects the whole exercise, that is our position.

JUDGE - does he consider potential for data to be unearthed years later re a job application?

Second point on proportionality, the Judge overlooked the issue of limitation on political speech. para 252. important factor in proportionality balance which the Judge doesn't recognise.

IW: Then Judge considers the role of the courts and application of Article 10 and 'genuinely hateful speech'. para 226. We are not in Article 17 territory so Article 10 not excluded. But this is irrelevant in this case - Judge found there was no hateful speech.

IW Fourth error (I must have missed the third?) with respect to 'less intrusive measures'. The Judge didn't consider any less intrusive measures.

JUDGE - did you suggest any?

IW: No, it was incumbent on Judge to consider for himself.

Judge - of course, not for you to identify but its sometimes helpful.

Judge - one might be not to record the name of the individual?

[YES EXACTLY]

IW: The justification is to stop escalation and prevent community tension - both legitimate aims and anonymisation certainly protects latter.

IW: Fifthly - none of evidence relied on by Judge demonstrated the necessity of recording legitimate matters of public debate. Failure to have regard to dangers outlined in Henriques report and uncritical recording of complaints made.

IW: Finally, safeguards were referred to as relevant in proportionality balance. But none of safeguards do in fact protect freedom of expression. The obvious point is that any safeguard relied upon has to be effective. Reminds court of Turkish case.

IW: In Turkish case, the measures adopted by the Gov were not sufficient to prevent interference with freedom of speech. We know no efficient or effective procedures for Harry Miller - made a complaint to police to no avail.

IW: and safeguards such as data protection are IRRELEVANT when person isn't told! The fact that the policy permits recording has the chilling effect.

[glad to see DP gets a mention]

JUDGE - evidence put in from the Respondent that this information against Mr Miller would not appear on DBS check?

IW: that was subject of much debate and you will see the findings of the Judge para 182

IW: none of safeguards provided Mr Miller with any satisfaction. Even succeeding against Humberside he STILL has a NCHI recorded against him.

Judge - its in the order itself?

JUDGE - he expressed 'considerable doubts' as to whether it should have been recorded.

IW: but nevertheless remained of the view it should be recorded.

IW: so in conclusion we say the Judge made a number of significant errors and got the balance wrong by not appreciating the significance of the chilling effect of freedom of expression on Harry Miller and others, in context of strong justifications required to limit it.

JUDGE - you mentioned Hecklers Veto and judge refers to that in one case - is there any other?

IW - not aware of any other. It comes from USA.

Now Jason Coppel QC for College of Policing. Wishes to focus on important context which is not controversial but which are glossed over by Claimant.

First, HM succeeded in claim against Humberside arising out of their response to Mrs B

JC: conduct of police had a number of impacts, even an approach to his daughter. No appeal against that aspect of decision and we don't challenge it. What is left is challenge to the guidance itself as contrary to common law and unjustified interference with Art 10.

JC: Guidance is relatively short, pitched at high level and applies accross the board to all descriptions of hate crime. Sits amongst canon of related guidance that govern recording and retention of information by police.

JC: where a policy document is challenged, the relevant question is whether the policy itself poses a risk to freedom of speech in more than minimal way. In answering that question, particular facts of HM case are relevant only insofar as may argue the risk of guidance.

JC: but a policy is not unlawful merely because it is liable to individual mistakes and misjudgments taken on the basis of the policy - as the judge found here.

JC: Certain aspects of HM challenge which IF correct invalidate the guidance i.e if not prescribed by law. but on proportionality the guidance is capable of being applied proportionally. This is real nub of claim - Court does have to consider if guidance creates real risk.

JC: second point of context -

JUDGE - on the one hand an individual case, on the other witness evidence as to why policy framed in way it has, and its aims... one of those is really not practical for police to investigate each and every case because of sheer volume...

Judge - therefore we are looking at a system unable to investigate a vast number of cases and I wonder how that factors into your submission that its capable of being applied proportionally??

[YES YES A THOUSAND TIMES YES]

Judge - if system just can't cope, how can we consider that it is capable of being applied proportionally?

JC: Will show you the purposes of this part of the guidance and to focus on what the guidance actually does and effect of challenge to it.

Judge - but individual is a 'suspect' and the complainant 'a victim'.

JC - that's a matter for the police force

JC: Guidance says to police where a complaint is made whereby the victim, er I mean the complainant, complains of motivation of hostility, that should be categorised as hate incident. basic message where complaint is of hate, that complaint should be recorded as NCHI.

JC: Mrs B's complaint would have been recorded in any event under other guidance, this is about a category of complaint and this one should have been categorised as hate.

JUDGE - you said other forces have different ways of recording. What language do they use?

JC: Humberside heading was 'Crime report' . College of Policing do not recommend this terminology, its a matter for local forces. but its not a consequence of the guidance to say they ought to be recorded on a document headed 'crime report'. I don't have other examples.

Judge - isn't it a problem for you that the guidance doesn't help? That the force has taken YOUR guidance and produced this form?

JC :no its not a problem. Let me make my categorisation point again.

JC: the police are simply told to categorise a complaint in a particular way. National Standards for Incident Reporting. Defines an 'incident'

Judge - that's the point. Your guidance says recorded and police looking at NSIR and using it as template.

JC: NSIR tells police that when Mrs B phones up and makes a complaint under definition of 'incident' the police should make a record. What they do thereafter is a different matter. once record is made, the guidance then tells police when hate incident category is appropriate.

Judge - but it MUST be recorded regardless. You seem to be saying the guidance is just about a category. Can you help me with this?

JC: the obligation to record comes from broader NSIR and the guidance says when to record as hate incident.

JC What guidance adds is when incident report should be categorised as hate.

JUDGE -so if no guidance, how would Mrs B's complaint have been recorded?

JC: NSIR has different flags, without the guidance the police would have exercised their own judgment.

JUDGE - but it would have been recorded as a complaint NOT an objective fact?

JC: That is flaw and misdirection in Claimnant's argumment. It is not recording an 'objective fact' it is recording that complaint was made and perception as in guidance.

[THIS IS NOT TRUE]

JC: doesnt mean the police say HM motivated by hate.

JUDGE - where does this leave the judges finding that there would be cases outside the margins of rationality? You say its just 'incident recording no more' But Judge did say there would be cases not appropriate to record.

JUDGE - although you are saying the police make no judgment about this, if there will be cases where police take a different view, they are making a form of judgment?

JC: you are right to pick me up. The Judge found there are limitations on when categorisation should be made.

JC: normal principles of public law rationality not displaced by this guidance. So recording should be on some rational grounds - we accept that. So the 'judgment' made by the police is only that the express provisions of guidance when not to categorise aren't met -

JC- AND SOME RATIONAL BASIS

[Has he just conceded this? So how are the police testing rational basis?]

JUDGE - motivation is one thing, but satisfying objective criteria as to whether something is hate incident or not is another thing. Sorry we have diverted you.

JC: the guidance requires the incident to be percieved by complainant as motivated by hostility and that the express provisions when NOT to categorise haven't been met AND SOME RATIONAL BASIS FOR COMPLAINANT'S PERCEPTION.

JC - all that is happening here is that a recording is being made of a hate incident

[THEN DONT NAME PEOPLE]

Judge - but whats the point of this. If all you are doing is recording someone's perception? I don't understand the utility of collecting this information if that is all it is.

YES YES YES YES YES YES YES

JC: aha! It depends what happens next. Some WILL be investigated! There will also be intelligence assessments, trends analysed work done with information which could not be done if the information not recorded

[Sorry I have to break off now to laugh hollowly]

Judge - anyone looking at this report would assume the police HAD made a judgment about hate because of the language.

JC: we are not concerned with the conduct of Humberside. We don't condone their terminology. I understand the implications.

JC: we are not concerned with precise forms and templates but the substance of recording a complaint as a hate incident based on perception. That is achieved by document but in ways we don't recommend.

JUDGE - but if that's how a reasonable police force act, how are members of the public going to react when they see this on a DBS, or people who fear there might be such a recording. this is how police respond to YOUR guidance.

YESYESYESYESYES

JC: waffle, we don't condone it.

JUDGE - certain parts of guidance that are fairly broad brush that deal with both recording of crime and incidents. Cases which are more serious and NCHI dealt with in the same basket?

JC: yes, that is correct. crimes and incidents dealt with compendiously. We are concerned with a challenge to the part of guidance specifically directed to incidents.

JUDGE - hadn't appreciated until now that para 6.3 appears to mirror entirely the NSRI guidance. Did the College copy this guidance or vice versa?

[EXCELLENT POINT - lifted guidance about hate CRIMES]

Judge - which came first and why is that?

JC: extract from predecessor, cross fertilisation from NSIR and hate crimes guidance.

JUDGE - and safeguards in that it must be factually accurate! If you have a form describing victims and suspects, is that easy to understand and factually accurate?

[THIS IS WAY BETTER THAN YESTERDAY]

JUDGE - the guidance refers to those who perceive themselves as victims TO BE victims.

JC: what is being recorded is that there was a perception by the complainant that has some rational basis and that is it.

JC; no evidence whatsoever that hate incident will appear routinely on DBS check merely because categorised. If investigated -

JUDGE - it will be disclosed on a search of the computer using the person's name!

JC: the record will appear on local police information, not PNC but linkage between local police data bases. If another police force is searching PNC they will get an alert that Humberside has a record.

JUDGE - your evidence was not accepted that it wouldn't turn up on DBS. We can't go behind that!

JUDGE - can you also look at your skeleton, which is why I asked the question.

JC: I accept the Judge did not accept our submissions that there were no circs whatsoever where HM's record would be disclosed but it would be wholly exceptional!

JUDGE - so if you are a member of the public, what do you know about how this is going to work for you?

JC: a rigorous set of safeguards to restrict the circumstances in which local police information will be on an enhanced DBS check. We had evidence of that in court below.

JC: if police are contemplating including this 'soft' information must consider its cogency and accuracy against background of proportionality test...

JUDGE - but are they given opportunity to make representations? Individuals are not told an incident recorded?

JC: if incident simply categorised, individual is not told. But fact that individual didn't know about record or had opportunity to give side of story, that is precisely the factor the police consider before disclosing.

{Are you comforted by this?}

JUDGE - if you are right and all this is, is a recording of a fact of an incident, all it is is that someone has perceived it as hateful. That answers question of cogency. That is the perception. What more is there to investigate?

JC: Chuckles nervously

JC: a lot more to investigate! Putting it to individual! If that hasn't been done, that is highly relevant to making representations before disclosure

(BUT THEY WONT KNOW ABOUT IT!!!}

JC: the record in HM case was much more than a categorisation as Humberside acted on it.... but in very limited circs if Mr Miller applying to work with transgender children then it, it, may be considered relevant!

JUDGE - what about an academic of feminist philosopher who responds to a public consultation about trans women using refuge and Mrs B complains about that? Would it be right to disclose THAT on a DBS check?

JC: would that be categorised at all?

Judge - it will be if Mrs B perceives it so

JC: subject to the express constraints in the guidance.

Judge - if academic says trans women are not women. Mrs B took exception to that. That would have been recorded.

JC: well. Um. Er. The Judge expressed serious concerns about whether Mr Miller should have been categorised in that way and we share those concerns.

JUDGE - but we have been shown the order made.

Judge - the guidance doesn't contain a rationality exclusion. Consider my example and academic is recorded.

JC: PAUSE. If it is recorded, um the question is should it be disclosed.

JUDGE - angrily - you said it was RIGHT to be disclosed. Is it right? Part of legimate debate.

JC - I didn't say it was right.

Judge - I think you did.

JC: If Mr Miller wanted to work with transgender children, it should be considered relevant to disclose. not in position what should or shouldn't happen at disclosure stage but questions would be raised. In real life, HM won't apply.

Judge - but how do you know that? He might have a career change! And an academic might! might express these views and be working with transgender young people!

JC: Yes. Theoretically possible in Mr Miller's case.

JC: if we proceed on basis that academic is categorised for hate, don't believe College of Police would support this but would it be disclosed on DBS check? There is detailed process of safeguards.

JC: I can't recall if I have answered your question.

Judge - you have probably answered enough. (chuckles) please continue with your submissions.

JC: now looking at new guidance. Looking at purpose of categorising incidents as hate incidents - there are 4. Not clear if crime committed and a record made to support initial investigation. 2. for intelligence purposes 3. evidence of course of criminal conduct 4 statistics.

[AND HOW MANY OF THE 120K GOT ANALYSED?]

JC: we have to record names otherwise we undermine those purpose.

JUDGE - but if there is NO evidence of hate, you record it based on perception, is that going to be particularly useful in harassment type case?

JC: this is telling the police to categorise an incident in a particular way [This point has now been made many, many, many times]. There should be some rational basis for record

Judge - where do we find that in the guidance?

JC: THERE ISN'T AN EXPRESS PROVISION IN THE GUIDANCE.

[And that I hope, is that. Mic drop]

JC But we say guidance doesn't suspend normal common sense approach of police. It doesn't say normal rationality restraints don't apply. Not intended to be comprehensive manual.

JUDGE - but they are told expressly to record. So where does rationality come into that?

JC; This is because victim shouldn't be pressed to explain why they thought that - to avoid secondary victimisation. That is not to say that the circs may not indicate simply no basis for record being made.

Judge - you took us to new guidance. Help us with introduction. Not every incident is a crime. If officer is unsure, an initial investigation should be undertaken to establish the facts. Record as NHCI after investigation. Isn't that exactly Mr Wise's point?

JC: What is being said here is that there will be some complaints in a grey area between crime and not crime and in grey area, police should investigate. But also incidents which are not crimes and which police can take view immediately. Guidance not telling them to investigate.

Judge - so you are better off if the complaint against you MIGHT be a crime, so you are investigated and it might be that its no crime at all! No evidence of hate! Person perceives hate but its irrational. So you are better off the more serious it is.

JC: Well. um. IF there -

Judge - you said there WOULD be an investigation if its in 'grey area'.

JC: yes, if investigated, outcome may be that the categorisation is removed. If no investigation, all you have on file is a complaint that hate incident occurred (THOUGHT YOU SAID PERCEPTION NOT FACT?]

JC; the new guidance modifies 'no need for evidence' . Victim does not have to justify their belief and police should not directly challenge perception.

Judge - tell me what the differences are between the two documents, or produce a document setting it out.

JC Perception based recording improves understanding and allows to gather evidence. Have to bear in mind that perception based recording has a long history since Macpherson report and endorsed at European level and there are very good reasons for it.

JC As we saw in THIS case, hard questions can arise but this is guidance that deals across the board with all hate incidents. In terms of proportionality its important to bear that in mind and look at the reasons for perception based recording.

[And THAT was only the 'introduction' to his submissions! Not sure I have the stamina for much more]

JC: new guidance mentions Article 10 and links to Miller judgment

{whoop-de-do}

JC: some changes have been made to emphasise constraints on police actions.

Now turning to common law issues. Police have long established common law powers to record and categorise information for policing purposes.

College of policing has common law power to issue guidance. Regulated by Data Protection Act.

[Will be short break in tweeting. Don't follow this reliance on common law powers. hopefully pick up again on Article 10].

Seems that much of this is just repeating the earlier points in answer to questions about safeguards and 'comprehensive restrictions' blah blah, so it IS in accordance with the common law, the question is does it satisfy ECHR.

JUDGE - but in [case cited] it was the objective fact of presence at a demonstration that was recorded. What is the objective fact here? It's different.

JC repeats categorisation point. Again.

JUDGE - but in [case cited] no issue of interference of Article 8 right but here you support Judge's finding of no interference of Article 10 right.

JC: if this case was put on basis of breach of Article 8 I couldn't dispute that?

(WHAT? DO I HEAR CORRECTLY? }

[DID CoP just concede this could breach Article 8? That's @SVPhillimore 's case!]

Judge - case of T para 43, long way from this case?

JC: Lord Sumption doesn't think a problem with recording, its the period of retention.

JUDGE - such a fundamental difference between people who know each other and live side by side when perceptions of hostility arise and communications over the internet... and the possibility of escalation into harassment just seems unreal...

JC rates of 'um's increase.

THIS IS FUNDAMENTAL POINT.

Judge - Judge said it was recordable by Humberside.

JC - he had considerable doubts if it was recordable under the guidance. But not breach of Article 10 to record.

JC deals swiftly with principle of legality, thank heavens.

Judge - you are positively now saying that Guidance requires police to test rationality?

JC: that follows from general law

[BUT GUIDANCE IS SILENT]

JC: is perception based recording a rational principle on which to base this guidance? Various materials set out in detail in judgment below. origins in Macpherson report, para 53. Recommendations adopted by Home Sec.

JC: Since adoption, perception based recording has been an important part of policing for 20 years. Para 55 adoption at European level of perception based approach.

JC: This sends message to victim voice will be heard.

Judge - that's just re race. Do you see a difference re reporting of transgender incidents?

JC: no. We don't.

JUDGE - we have witness statements - do we have a list of membership of the group (not sure which group referred to but interesting that Judge wants to know who they are).

JC: at a high level the principles are equally applicable to the different types of hate crime and hate incidents.

[Refusing to accept the distinction between clearly racist speech and debate about existing laws will I trust be their downfall]

JC; volume of hate incidents so large would be impossible for police to investigate each one. Recording on basis of perception ensures they continue to be monitored.

[But police don't monitor]

JC: perception based recording in principle has long and distinguished history and is not irrational. Of course it should and does have constraints but is not in principle irrational.

Judge - secondary victimisation, a tricky area. But its a negative response to a complaint such as denial of perpetrator's motive. So a positive response given to validate victim's response, gives victim impression their voice is being heard, and something is happening.

Judge - this goes against the suggestion that it is a neutral record. Impression is being given it is taken seriously. You say it, its certain.

JC: no, not saying it's certain. We won't challenge you to provide evidence, we will categorise incident.

[If I hear 'categorise the incident' one more time I will scream]

JC: whether it is in fact a hate incident, it may be investigated or it may simply lie on file.

JUDGE - how long does it lie on file without being investigated?

JC: Um an important issue, not explored.

JC: Code of practice on managing police information requires regular reviews [of 120K incidents? Really?] Can't tell you period between reviews [Why not?] Each force is supposed to have regular revision of records. I will check and see.

JC: police could reissue guidance with express rationality constraint, but the Judge held this was already there.

JC: now Article 10 interference. Judge entirely justified to find no interference when you see how limited the effect of the guidance. Does not mandate the recording of an incident, that is the NSIR which also has list of categories

JUDGE these guidances are mirror images?

Judge - should not record as a suspect!

JC - guidance instructs as to when apply categorisation as hate incident.

Judge - 6.3 uses mandatory language. It would just be recorded as a complaint if the guidance didn't exist. ... doesn't that potentially stigmatise a group of people engaged in public debate, more likely to be complained about by Mrs B and others offended, and has chilling effect

KNOCK OUT

JC: meaning of categorisation is not a FACT of hate, it is PERCEPTION. You talk about stigma, if police were agreeing with Mrs B... but that's not it. The mere categorisation for all reasons shown, is not a stigmatisation.

Judge - lets link this to rationality argument. Must be some rational basis to make it hate incident. You say its completely neutral but saying must be rational basis! Is that stigma free? Connotes acceptance by police that there is rational basis for hate element in this tweet!

[CALL AN AMBULANCE]

JC battles on: that is not stigma, not equivalent to a judgment. The categorisation goes no where. It is useful for certain purposes, but in and of itself it doesn't stigmatise or interfere with the person complained about.

Judge - is that right? The purpose is to have something there the next time a complaint is made! Might lead the police to think we need to take this further?

JC They might think 2 times zero is zero.

JC: if they do take action, it is that which would provide basis for interference.

JUDGE BUT THAT IS WHAT CREATES CHILLING EFFECT THAT RISK

JC guidance is about categorising

AAAAAAAAARRRRRRRRRRRGGGGGHHHHHHHH

JC no additional stigmatisation because records are ordered and flagged.

JUDGE - we discuss importance of perception based recording. Perception is important for person recorded too! In terms of chiling effect.

JC: Um.

JC There is no authority about the very limited magnitude. Once you understand its categorisation and not recording, there is nothing in authorities that comes within a country mile of interference.

[WHAT IS THIS EVEN]

JC 'Categorisation' is not interference.

JUDGE - lets just look at this. If fact is people know about this type of recording and it impacts on what they feel they can and can't safely say - what then?

JC. So. (pause). HM's evidence did not correctly identify what the guidance actually does

(SAY IT WITH ME! ITS JUST CATEGORISATION)

Judge - if we know records are being kept about what we are saying about things this wouldn't cause us to moderate what we are saying?

JC. It is guidance that mandates keeping of record that is NSIR.

Judge - but this is recording as hate incidents. We know the implications for this in the real world are very significant.

JC But what are the implications? Its just a categorisation!

ITS LUNCHTIME THANK HEAVENS PLEASE MAKE IT STOP

Back at 2pm!