Thread by @WeAreFairCop

And we are back! #FairCopAppeal

JC: on the question of retention periods, some evidence before court below.

{WHY ISNT THIS CLEAR AND CONSISTENT?}

Answer seems to be 'it depends' on local policies and how applies? Suggestion is 6 years.

JC Returning to submissions about implications for individual about categorisation of complaint about hate. Para 177 of Knowles J judgment, he accepted submission that while overall information is important to policing, the 'mere recording' has no real consequence.

JC -he might have said the 'mere categorisation' of the incident has no consequence. It is administrative process to build a picture on statistics. Guidance does not mandate any form of action. Decision to take action is operational one for police.

JC: We adopt and emphasise the distinction between 'mere categorisation' and operational decisions taken by police thereafter. Operational decisions may contribute to some degree of stigmatisation but these are separate to guidance.

JC It is difficult to see how mere categorisation under the 'hate' qualifier could stigmatise individual when they aren't aware of it unless further action is taken.

{REALLY. THIS IS REALLY YOUR ARGUMENT}

JC - nobody will know!

(Well yes. Unless like with @SVPhillimore her anonymous reporter posted it all over the internet)

JC once the limited effect of the categorisation is understood there is no basis for the supposed chilling effect and absolutely no basis in the decided authorities for a step of this nature to be held to be an interference with freedom of expression.

JC the Claimant's best case is at para 178 of the judgment, a Lithuanian case. An administrative penalty imposed and publication confiscated. That was held to be interference with publisher's Article 10 rights. You have no other authority. Judge distinguished this and rightly so.

JC: you have nothing with which to anchor an interference with freedom of expression.
So far as evidence is concerned, you are concerned with guidance across the board. in this particular case we know there was disproportionate action taken by Humberside.

JUDGE - Humberside was represented separately below - what did you say then about their case on their actions or was it dealt with separately? Did Humberside say they were acting in accordance with the guidance? They must have done. Did you take a stance?

JC - we were supportive or or not in opposition to Humberside. I didn't appear below, but skeleton argument is in core bundle. We were primarily concerned with the guidance.

(EXCELLENT POINT - if Humberside got it so wrong, why didn't they notice at the time?)

JC - his recollection confirmed by his junior. Didn't take a positive stance on legality of Humberside's actions.

(Don't you think you should have? If now you don't condone it?)

IW rises - I was there. College of Police supported Humberside 100% and in fact did most of the running.

JUDGE - skel argument submits that CoP does not agree that Humberside breached Article 10.

JC: we were concerned with calling it categorisation, not the visiting of Mr Miller

IW: has to object again. the CoP supported EVERYTHING Humberside did.

JUDGE - I think we can leave it there.

JC: Evidence of HM and his wife to the challenge that remains, they were concerned with the post categorisation actions of the police and there is a failure to understand what the effect of the guidance was. Don't criticise HM's evidence about how he felt overall -

- JC but there isn't a focus on what is the actual effect of the guidance. And there is no wider evidence about chilling effect beyond Mr Miller's particular circumstances.

JUDGE - what about the evidence of @Docstockk ?

JC: yes you had evidence about the issue on which he was tweeting, but in terms of the effect of the guidance more broadly, which is what we are concerned with now, the evidence focused on HM's particular concerns.

JC: Other part of case on interference is the is argument in relation to enhanced DBS disclosure which we have covered already. The Judge disagreed with us as to likelihood of disclosure.

JC but disclosure is constrained by safeguards I describe. And complaint would have been recorded and would be on system in any event, it is only additional factor of the 'flag' that could conceivably amount to interference with freedom of expression.

JC: would be contrary to protocols and safeguards to disclose without looking at substance.

[But what IS the substance?]

JC now looking at 'prescribed by law'. Case law says retention of data in police systems is in accordance with the common law and data protection law. Recording of information must also then be in accordance with the law and categorisation of information recorded is also lawful.

JC it is plainly forseeable in light of existing law that the police will categorise and organise incidents they record.

{But who can foresee Mrs B - or any other person 'on the outer edges of rationality?]

JC - this is challenged on the basis that perception based recording is too broad. That is a proportionality complaint. Even if I accept we should look at breadth of guidance, 2 preliminary points.

JC: First is principle of relativity, identified by CoA in Bridges. The more intrusive the act complained of, the more precise and specific must be the law to justify it.

JC if we surpass threshold for interference we say that it is relatively low level (?) you can contrast the Turkish case where the academic faced a serious risk of criminal prosecution, not someone applying a qualifier to a record held about him at a police station.

JC - guidance is pitched at high level and regards hate crimes and incidents. Not very lengthy document. It has limited purposes and does not exclude other range of matters police will ordinarily have regard to.

JC - purpose of guidance is to remove MOST of element of judgment which in the past had caused the police NOT to categorise hate incidents. Express controls on how categorisation will operate. Over arching public law constraints.

JC Doesn't agree that it is not possible to foresee when category will apply but guidance doesn't have to identify every possible outcome.

Looking at proportionality.

Judge - what approach then taken to principle of relativity?
Once you accept Judge entitled to come to conclusion about level of interference, it has to factor in same way as relativity.

JC - yes, if low level of interference, justification is at low level.

JUDGE - if says no interference as this judge did, then its different? As he hasn't weighed it.

JC but he did go on to consider if he was wrong

JUDGE - thats a very interesting intellectual exercise! He didn't go on to weigh what would happen if a serious interference. He still discounted the degree of interference.

JC when he considered if there was interference, he analysed what the impact was and decided it didn't pass threshold. But if he was wrong and it was over threshold and he had to consider proportionality he couldn't ignore that it was relatively low end

JC - on any view, categorisation as a hate incident, separate from what may follow, cannot be a serious interference with freedom of expression.

(BUT ITS THE WHAT HAPPENS AFTER....)

JC we are simply talking about police record keeping for intelligence purposes as the Judge held. So he is not guilty of error of law or flaw of logic.

JC: IW criticised 226 para of judgment where Judge said interference low but didn't explain - but he had explained why in earlier part of judgment.

JUDGE - is it fair to say the Judge was focusing mostly on particular facts of Mr Miller's case rather than the macro chilling effect. He touches on it but doesn't appear to be considering the wider issue of potentially chilling effect of a data base recording these tweets.

JUDGE - don't get the impression from the judgment that he is dealing with wider issues.

JC: He is undoubtedly focusing on Mr Miller's case because of challenge to Humberside and because argument on guidance was 'this is unlawful, look what can happen'.

Judge - you say judge said it was 'low level' but was he considering the wide spread chilling effect it might have in his judgment.

JC. Um. Er. he doesn't go much beyond the facts of Mr Millers case.

[THEY HAVE THE POINT]

JC but its just categorisation, everything else operational, that applies across the board.

{I am not tweeting anything else about categorisation. You get the point}

JUDGE - the Judge said he recognises mere recording MAY have chilling effect on speakers right to expression.

JC but it is mere recording without more ?

Judge - he then says its too remote to produce consequences?

JC [excitedly] and that's absolutely right!

Judge - in a world without the guidance, you said this complaint from Mrs B would have been recorded in any event. What as?

JC recorded as an incident.

Judge - of what and how searchable?

JC: look at NSIR, definition of an incident. minimum standards of what needs to be recorded in relation to an incident. Date and time etc. Incident goes on same data base but doesn't have the flag of 'hate'.

JC there are other flags, qualifiers.

Judge - what purpose would it serve recording this. I have seen a tweet I don't like and I am very upset. Recorded, date and time - for what purpose?

JC - erm er, the context of hate incidents in the guidance. May require police to take further action. A record without hate qualifier serves exactly the same, er similar purposes as with hate qualifer. Gives police particular intelligence.

[this is woeful.]

JC - you have to focus on what the impact of the guidance really is. Limited.

JC: IW criticises Judge reference to Article 17 but that was a fair and correct reference when issue was proportionality of guidance as a whole.

JC we KNOW Judge wasn't saying Mr Miller's was hate speech as he expressed doubt it was recordable at all. But look at guidance as a whole.

JC - final point of IW to address relates to safeguards. Public law constraints, DPA and other policies

{But remember that impact of data protection law has NOT BEEN ARGUED IN THIS CASE]

JC point was - can't be safeguards if you don't know you have been recorded. Well, if you don't know and no further action is taken, what does there need to be safeguards against? No concrete effect. Only if further action.

(This is where the DP argument will hurt)

The College of Police ladies and gentlemen. What you don't know can't hurt you.

JC this is not root and branch challenge to guidance but how it may play out in context of individuals making public statements on matters of social controversy.

[YES THAT IS EXACTLY THE POINT]

JC - court must exercise caution in terms of undermining the guidance across the board, given the range of circumstances it applies to.

[THEN AMEND YOUR BLOODY GUIDANCE]

JC - there is proper restraint exercised in face of complaints such as those made by Mrs B.

(really?)

[So what 'restraint' was applied to recording @SVPhillimore for retweeting an article that upset someone?]

JC is relying on the 'internet stories' and 'political motive' restraint. [didn't apply to Mrs B so how do we have confidence it will apply to any other irrational complainant?]

Judge - not an easy task for the police to undertake. You don't have windows into people's souls. Not an easy issue to resolve.

JC - there are good reasons for perception based recording and particular circs where difficult questions arise.

JC but guidance does make efforts to constrain police actions in difficult areas. The guidance directs them to consider the matters complainant raises. Judge didn't look at new guidance.

Judge - you said this case raised issues but give the impression its rare. Don't we have to consider the matter in a broader context. For e.g. a student who posted on facebook about homosexuality, saying it was sin and was reported and disciplined. That is another eg of stilfling

Judge - this might well be reported and categorised under your guidance?

JC I accept that raises difficult questions.

Judge - dealing with your submission that this is 'rare' - but there are debates about sexuality and trans etc.

JC I am not saying this is the only example of difficult case - its about public comments on matters of social controversy which go beyond trans rights. But equally homophobic hate crime is a real problem and real necessity to take action against it.

JC so we must be careful drawing the line too far back given that we are only talking about [AAAARRRRGGGGHGGH]

JC - new guidance, police should take advice not to infringe Article 10 rights beyond what is permitted by law. Telling police to consider freedom of speech implications is right and appropriate to address the sorts of issues this claim raises.

JUDGE - looking at what new guidance says about Miller. Guidance requires recording based on perception.

JC but draws attention to limits of perception based recording that Judge identified.

Judge - in the real world how does this square with your statement that volume of messages is so large it is impossible for police to make decisions on safeguards. How do these safeguards operate when so many complaints?

[Junior lawyers - beware 'in the real word']

JC - I cant get away from high volume

Judge - you want your cake and to eat it. You now seek to rely on the prospect of investigation after the event.

JC I will always seek to do that! (delighted judicial chuckling). political motivation may not require any significant investigation. but you are right, some safeguards will require investigation.

JC This guidance does take considerable steps to addressing the problems raised in case such as Mr Miller but without significantly compromising the important principle of perception based recording. That is balance struck by College.

JC Unless i can assist further those are my submissions.

IW Responds.

IW - what seems to have happened is the CoP are EMBOLDENED by the judgment. The only substance I could ascertain was changed was that the CoP are bringing this into schools!

IW so a child who says something derogatory at school could be recorded. This gets worse not better. This is not constraints or sensible balancing. Its entrenching the errors already apparent.

KILLER POINT

and there are proceedings extant to the extent to to which this guidance effects children.

#JusticeforMissB

IW We haven't been pointed to one restraint in the new guidance - instead it has become more extensive.

JC - new guidance makes it clear its a matter for the school management team not police.

{SO THATS OK THEN? WHAT IS THIS I CANT}

Judge - we want a track changes document and a schedule of changes and deletions.

[WHY HASNT THIS BEEN DONE ALREADY?]

IW 'victim' and 'suspect' now given specific approval by this guidance and a school child now becomes 'a suspect'.

IW theme through JC's submissions was that due to operation of both sets of guidance, the Hate Crimes guidance in essence made no difference. He was asked how this incident would be recorded under National standards - and he could not answer.

He is still unable to present the evidence that is the central plank of his case - he is saying 'none of this matters'.

Risks of disclosure - wasn't limited to working with transgender children! JC misrepresented what the Judge said, submission not warranted. 'may or may not be disclosed' - but precise circs don't matter IT IS THE CHILLING EFFECT OF THE POSSIBILITY OF DISCLOSURE

If you go on social media and say anything that might upset someone, you have a very real possibility of a police recording about it.

JUDGE - new guidance p274 example of incident at a party in someone's home.

IW I reiterate the point. The CoP are emboldened and reach grows.

IW - I read 140K incidents recorded

Judge - what period? We must be clear, volume is such they cannot be investigated.

IW - significant change in how CoP presented their case. He used word 'categorisation' repeatedly. Clearly a deliberate decision to try to make the whole procedure more palatable. Its a recording. That's what it says on the tin.

He also says guidance isn't intended to be comprehensive as if that absolves CoP for responsibility for any omissions. Can't have any traction with new version. He says its 'high level guidance', what does that mean? officers on the ground rely on it.

IW - our case was NOT about rationality of perception based recording - it was about rationality of recording with NO EVIDENCE OF HATE.

So CoP didn't address our argument at all.

IW: you asked JC about distinction between racist and other incidents and I apprehend you had in mind @Docstockk second witness statement where she sets out how behaviour and language are very different in different contexts. Racist comments can generally be identified clearly.

IW - very different re 'transphobic' comments - large proportion of population wouldn't see issues of men and women being 'hate'.

(it is the 'can't rescue racist speech' point)

This point is important as the genesis of this guidance is about combatting racial abuse and hatred. We do not seek to undermine this. But Macpherson DID NOT say that incidents should just be recorded without any investigation.

IW - JC developed concept of 'rationality constraints' - assume he meant police using common sense. There is a difference between common sense and rationality. One person's common sense not the same as another's. Rationality is much higher threshold.

IW - asserted no case law on our case on interference? Will never be a case on all fours. But there are analogous cases.

impact on Mr Miller - reaction of anyone operating their rights of free expression.

JUDGE - if there had been a mere recording, Mr Miller would never have known about that entry. Inevitably he must be identifying his response to being told.

IW - yes, distinction between knock on the door. That was beyond the pale.

JUDGE - but if no knock on door may not have known. How does that leave your argument.

IW er, er he may be aware in world of social controversy. Others now know because of him. Word will get out, it is inevitable. Those on social media will be told about what is going on in these sorts of cases. Quickly will become a general awareness that police collect info.

IW: this is the argument on chilling effect. And now have guidance re children. How quickly round the playground will this go?

IW - it is not a defence to say we will do it and not tell anyone.

IW also Jodie Ginsberg's evidence - gives actual examples of police involvement on social media. That is interference.

Now arguments on 'prescribed by law' and surprisingly omission of the word 'foreseeable' by JC. It gives rise to question - could person foresee the consequences? How on earth could anyone foresee the reactions of someone like Mrs B on the outer edges of rationality?

The other side don't address this for good reason - there is no logical answer. no one can foresee the actions of an irrational person.

[WELL QUITE]

IW - other side entirely ignored the special protections given to political debate. That requires very compelling reasons INDEED to curtail.

IW - this debate on social media is the new life blood of democracy [God help us] and needs compelling reasons to be curtailed.

IW Very surprising submission to hear the CoP now don't support Humberside! They were very supportive before.

Learned junior reminds IW that the Assistant police constable posted statement in paper just before pre action letters that it was correct to record. So shows the level of support. This wasn't a 'rogue' case where something went wrong.

Judge - thanks all for hard work. Will consider judgment. Drafts will be circulated to parties for correction of minor errors. Judgment will be handed down and no need for parties to attend. Invite parties to endeavour to agree draft order and submissions on consequential matters

15.53 COURT RISE

EXUENT pursued by a bear.