Just before Xmas 2021 the Court of Appeal gave its judgment in the Harry Miller case. This, together with the Supreme Court’s Elan-Cane decision earlier that month, impact some of the most sensitive issues in society at present: free speech, hate crimes and the role of the police, self-identification and the role of judges under the Human Rights Act (“HRA”). These rulings provide — if taken — some guidance on sensible next steps and a corrective to Dominic Raab’s claims that the HRA has led to over mighty judges and needs amending in the ways he has recently suggested.
Self-identification
Elan-Cane’s claim was simple: born female, they were distressed by their body and had had a mastectomy and hysterectomy to remove visible and internal sex organs. They did not have or want a Gender Recognition Certificate but considered themselves non-binary. In consequence they wanted ‘X’ on their passport. They felt demeaned being forced into a M/F choice, a distress which should be alleviated by allowing them this alternative. The appellant claimed the ECHR gave them this right. If not, the court should create it using the Human Rights Act. Ooh! Controversial. The claim was dismissed. Why?
First, the court said that information was collected for reasons which had nothing to with individuals’ feelings about themselves. The latter were irrelevant. Collecting accurate information about individuals did not cause them harm or demean them.
“The purpose of providing that information is not to inform HMPO as to the applicants’ feelings about their sexual identity, and the applicants are not being forced to lie about those feelings.”
In 32 words, the court politely rejected the narcissism inherent in the appellant’s claim. Why? After all, how can it possibly affect others if a person calls themselves what they feel themselves to be in a private document?
The court had an answer for this too, one that should be obvious to all but the most acutely solipsistic. Identity documents are not private. Nor can they be viewed in isolation from their legal/administrative context or the use to which they are put. They are relied on by others — the state, other entities — when performing their legal obligations: verification of identity, taking precautions against fraud, ensuring security, providing accurate statistics. Their usefulness therefore depends on being both factually accurate and consistent with how other similar information is collected and recorded.
Above all, there is a need to have coherence in a country’s administration and law. The court explained at length the many laws and public services dependant on male/female categorisation and, of necessity, the need for factual accuracy in such categorisation. It also pointed out the need for a fair balance between the competing interests of an individual and the community. The public interest in having data be factually accurate, consistent and recorded in accordance with the law outweighed an individual’s desire to express their feelings about themselves.
Free speech or hate speech?
Onto the Harry Miller case. Mr Miller is a retired policeman who wrote various tweets on the gender/sex topic, which others thought transphobic. A complaint was made to the police. He was not prosecuted for them, though the police did visit him on various occasions and purported to advise him on what he should/should not say in order to avoid further complaints. (The police’s behaviour was criticised by the court in other legal action brought by Mr Miller.) His tweets were recorded as “non-crime hate incidents” in line with police guidance set out in the College of Policing’s Hate Crime Operational Guidance. Miller claimed this guidance was unlawful on various grounds, one of which was that it unfairly impinged on the right to free expression. In particular, he objected to the advice to record an incident as a “hate” incident purely on the basis of another’s perception (who did not need to be the target of the tweets) regardless of whether there was any inquiry into the incident’s truth or evidence to support the “hate” allegation.
Why should this matter if there was no prosecution? Well such incidents can be disclosed by the police on enhanced criminal record certificates, needed to be teachers, social workers, carers etc. So what the police disclose matters.
Did it matter if the police simply recorded the incident and there was no disclosure? The court accepted that the police had a right to record all sorts of matters as part of its policing duties — an assumption which may itself be open to challenge — but this right was not unqualified.
In particular, what of the right to free expression, a right generally accepted in English law and expressly protected by Article 10 of the European Convention of Human Rights? The court considered this an extremely important concept — not just for journalists (most cases under this Article of the Convention related to states seeking to limit journalists’ activities) — but also for private citizens expressing their view within the law, especially on controversial matters of public interest.
The Court of Appeal referred to what the European Court of Human Rights stated in Handyside v The United Kingdom:
“Freedom of expression constitutes one of the essential foundations of a [“democratic society”], one of the basic conditions for its progress and for the development of every man. Subject to paragraph 2 of Article 10 …it is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”.
Did the Guidance interfere with the right to free expression? Yes, said the court. Police guidance to record non-crime hate incidents “is plainly an interference with freedom of expression and knowledge that such matters are being recorded and stored in a police database is likely to have a serious ‘chilling effect’ on public debate”. This was because the sort of speech considered within scope was very broad indeed with a very low threshold, without the need for any evidence of either hate or hostile motivation before being recorded. Further, the vast majority were never investigated. In effect, the police were being encouraged to record as non-crime hate incidents, incidents “which are, to put it shortly, non-crime non-hate incidents” and doing so without any regard to peoples’ rights to free expression. The court stated that the Guidance would need amending though it left this to the College rather than spell out precisely how this should be done.
What does this mean?
There is much in these cases, more than can be summarised here. But some general points can be made:-
1. Individual perception and feelings are not everything. Feelings do not override facts. Nor the need to comply with the law.
2. An individual’s demands do not, of themselves, create a legally enforceable right. The demands of the collective — whether the state or other affected individuals or groups — also need to be considered. One of the curiosities in these debates is that those most keen on asserting the rights of a favoured group are often hyper-individualistic in wanting a member of that group’s demands met unconditionally and absolutely and reluctant to accept that other groups or the state may have different or competing interests.
3. Factually accurate data is essential to an understanding of risk, effective risk management, good research and sound policy-making.
4. Debate on matters of controversy will necessary involve saying things others disagree with. Disagreement, even when it upsets the state or other groups, is essential for the pluralism necessary in a democracy. In a democracy a stance of “no debate” is absurd. This does not make such disagreement or difference of opinion, however strongly or crudely expressed, either phobic or hateful, even if it goes against the consensus. Those who rush to categorise opinions they dislike as “offensive” or a phobia would do well to acquaint themselves with JS Mill’s thoughts on the topic — “He who knows only his own side of the case knows little of that.”
5. There appears to be confusion within the police: about the difference between intelligence and evidence and the uses to which they should be put; about the difference between behaviour which may be dislikeable or unfashionable and that which is criminal; and about what the police’s relationship with alleged victims and alleged perpetrators should be. The police seem to place more emphasis on recording matters, regardless of whether they are crimes, than in investigating them properly or at all. In so doing, police forces risk making themselves a vehicle for matters which are more properly the subject of public debate than for law enforcement.
What next for the police?
These are matters which some police forces seem unwilling to understand. There are many reasons for this, too many to go into here. In part, it is because it is so much easier to record an incident than it is to investigate it to the level required. Criminal investigations, if well done, are hard work. In part, it is a result — triggered by the Macpherson Report on the murder of Stephen Lawrence — of a desire to appear righteous, on the side of those who have been badly treated in the past by the police, to have the right values. These are not bad aspirations to have but they need to be accompanied by real substance and clear thinking. Too often they are not. It’s as if what matters most is not goodness but the appearance of it.
Look at the Met’s scandalous failures in its investigation of the 4 murders of young gay men by Stephen Port. Of what use or comfort were the Met’s rainbow flags and attendance at Pride events in such a case?
Or take Police Scotland who have decided to record a male alleged rapist as a “woman” if the male rapist “insists”. (Note how the police have moved seamlessly from concerning themselves with the perception and feelings of the victims of crime to those of the perpetrator.) According to Police Scotland, doing so is in line with “their values”. This may very well be so, though it would be illuminating to know quite what those “values” are. But it is not in line with the law, which says that only a male (including a woman who has legally/physically transitioned to being a man) with a penis can commit rape (though women can be guilty of aiding and abetting). It also ignores S. 20 of the Gender Recognition Act which requires birth sex to be recorded not the acquired gender when it comes to gender-specific offences such as, well, rape. It is also likely to conflict with the evidence given by — and perception of — the female victim, whose perceptions and experience do not appear to concern Police Scotland. What confidence can she — or anyone else — place in a police investigation which appears from the start to be biased in favour of the alleged attacker. (One wonders what else Police Scotland would do if the accused “insists” — destroy evidence or close the case, perhaps.)
What are we to make of crime statistics collected on such a basis? A small number of male sexual offenders classified as female (gender) can have a hugely distorting effect on the statistics for crimes committed by women (classified by sex). How can any sort of sensible risk assessment be made or anti-rape policy developed? It does not matter on which side of the debates on these topics anyone is. The very minimum needed to inform any debate, let alone policy decisions, is fact-based information consistently collected in accordance with the law.
It is not just the police who need reminding of this: the Office for National Statistics had to be judicially reviewed in relation to its advice on the sex question in the 2021 census (it proposed allowing people to answer on the basis of their preferred gender identity despite there being a separate gender question).
The police may have been in the firing line in the Miller case but the principles set out in it and the Elan-Cane case apply to other public authorities too.
The Home Office would do well to insist that the police collect information about crimes, such as sexual offences, on the basis of fact and existing law and that this is done consistently across all forces. A beady eye should also be kept on the College of Policing to make sure that the Guidance really is changed to reflect the Miller judgment. The College of Policing has form in ignoring judicial pronouncements it disagrees with. See its reaction to Mr Justice Henriquez’s recommendations following the police’s multiple failures in Operation Midland. Legislation is planned. This too will need careful watching.
Judicial overreach?
What of Mr Raab, the Justice Secretary? He wrote a book arguing that there were serious flaws in how the Europe Convention on Human Rights had been implemented into English law by the HRA. He now proposes changes to it. These have been severely criticised by the joint Parliamentary Human Rights Committee, amongst many others. He also wants to limit the power of the courts to judicially review government decisions. He should perhaps reflect on the value of judicial review, as shown by these two cases.
- They show why scrutiny is necessary, especially of little known public authorities with considerable power, to ensure they act lawfully.
- They show the care with which courts try to balance competing rights.
- They show how courts seek to uphold basic rights when others seek to circumscribe them.
- They provide Parliament with the opportunity to legislate to correct wrongs, as the Home Secretary now proposes to do.
He might also reflect on what the Supreme Court stated in the Elan-Cane case when it declined to create a new right under the HRA, as urged by the appellant:
“…in the United Kingdom law-making is generally the function of the legislature. If the Human Rights Act were to be interpreted as giving judges the right to find breaches of Convention rights even where the European Court would hold that UK law was in conformity …. there would be a substantial expansion of the constitutional powers of the judiciary at the expense of Parliament. Parliament is unlikely to have intended to effect such an encroachment upon parliamentary sovereignty when it enacted the Human Rights Act.”
Is there anything in that with which he disagrees?
