Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this appeal, sets out the national policy in relation to the monitoring and recording of what are described in the Guidance as non-crime hate incidents. At the root of the challenge is what is called perception-based recording. Specifically, the policy that non-crime hate incidents must be recorded by the police as such (against the named person allegedly responsible) if the incident is subjectively perceived by the ‘victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender’ and irrespective of any evidence of the ‘hate’ element. The lawfulness of the relevant parts of the Guidance is challenged as contrary to the appellant’s right to freedom of expression, both at common law and as protected by Article 10 of the European Convention on Human Rights (the Convention).
Held: The appeal was allowed on two grounds. The Guidance was a real and significant interference with the right to freedom of expression. The risk of recording in such a case (together with knowledge of that risk and potential disclosure of non-crime hate incidents on an Enhanced Criminal Record Check, for example) had the potential to create a chilling effect in relation to public debate on a controversial issue.
Although the Guidance contained two narrow exceptions to the general rule
that complaints must be recorded, the lack of any ‘common-sense’ discretion not to record irrational complaints meant that there was a risk of recording incidents which are essentially non-crime non-hate incidents. The Guidance made no provision for any proportionality exercise in relation to recording and said nothing about the language to be used in any such record, or whether the subject should be notified that an incident has been recorded.
President of the Queens Bench Division,
Lady Justice Simler,
And,
Lord Justice Haddon-Cave
[2021] EWCA Civ 1926
Bailii, Summary, Judiciary
European Convention on Human Rights, Data Protection Act 2018, Police Act 1997 113B(4)
England and Wales
Citing:
Appeal from – Miller, Regina (on The Application of) v The College of Policing and Another Admn 14-Feb-2020
The claimant challenged the respondent’s operational guidance on non-criminal hate speech. A third party had complained of his comments in tweets regarding transgender issues. . .
Cited – Catt and T, Regina (on The Applications of) v Commissioner of Police of The Metropolis SC 4-Mar-2015
Police Data Retention Justifiable
The appellants challenged the collection of data by the police, alleging that its retention interfered with their Article 8 rights. C complained of the retention of records of his lawful activities attending political demonstrations, and T . .
Cited – Catt v The United Kingdom ECHR 24-Jan-2019
ECHR Judgment : Article 8 – Right to respect for private and family life : First Section . .
Cited – Wood v Commissioner of Police for the Metropolis CA 21-May-2009
The appellant had been ostentatiously photographed by the police as he left a company general meeting. He was a peaceful and lawful objector to the Arms Trade. He appealed against refusal of an order for the records to be destroyed. The police had . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Youssef, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 23-Jul-2012
The claimant challenged having been listed as an associate of Al-Qaida, with the resulting freezing of assets and a travel ban.
Held: His request for judicial review failed.
Toulson LJ deprecated the ‘tendency on the part of lawyers . . . .
Cited – Unison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
Cited – Al-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
Cited – AJA and Others v Commissioner of Police for The Metropolis and Others CA 5-Nov-2013
The Court was asked whether the Investigatory Powers Tribunal had the power to investigate whether police officers acrting as undercover agents, and having sexual relations with those they were themselves investigating had infringed the human rights . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Balsyte-Lideikiene v Lithuania ECHR 4-Nov-2008
. .
Cited – Vajnai v Hungary ECHR 2010
The applicant wore a red star which was proscribed because of its association with communism.
Held: ‘a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be . .
Cited – Altuc Taner Akcam v Turkey ECHR 25-Oct-2011
A professor of history had published numerous books and articles on the historical events of 1915 concerning the Armenian population, a subject of great sensitivity in Turkey. He published an editorial opinion in a Turkish-Armenian newspaper . .
Cited – Bridges, Regina (on The Application of) v South Wales Police CA 11-Aug-2020
. .
Cited – Bridges, Regina (on Application of) v The Chief Constable of South Wales Police Admn 4-Sep-2019
The court was asked whether the current legal regime in the United Kingdom is adequate to ensure the appropriate and non-arbitrary use of Automated Facial Recognition technology in a free and civilized society. At the heart of this case lies a . .
Cited – Perincek v Switzerland ECHR 15-Oct-2015
(Grand Chamber) The applicant alleged, in particular, that his criminal conviction and sentence in Switzerland on account of public statements that he had made there in 2005 had been in breach of his right to freedom of expression and of his right . .
Cited – Silver And Others v The United Kingdom ECHR 25-Mar-1983
There had been interference with prisoners’ letters by prison authorities. The Commission considered Standing Orders and Circular Instructions in relation to restrictions on correspondence. The rules were not available to prisoners and were . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – A, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2021
Standards to be applied by a court when it is asked to conduct a judicial review of the contents of a policy document or statement of practice issued by the Government. The Supreme Court set out the principles governing the test that should be . .
Cited – BF (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2021
Standards to be applied by a court on judicial review of the contents of a policy
document or statement of practice issued by a public authority. I . .
Cited – Perincek v Switzerland ECHR 15-Oct-2015
(Grand Chamber) The applicant alleged, in particular, that his criminal conviction and sentence in Switzerland on account of public statements that he had made there in 2005 had been in breach of his right to freedom of expression and of his right . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Lists of cited by and citing cases may be incomplete.
Crime, Police, Human Rights
Updated: 30 December 2021; Ref: scu.670638
