What next for the Hate Crimes Guidance?
The Failures of the State to Respect and Protect Fundamental Human Rights
Harry Miller’s long journey to challenge the lawfulness of Chapter 6 of the 2014 Hate Crimes Operational Guidance (HCOG) finally ended in success in December 2021, when the Court of Appeal agreed with his criticisms of “perception based” recording of “hate,” regardless of any supporting evidence.
The Court of Appeal posed a simple question—does the Guidance sanction or positively approve unlawful conduct that violates Article 10? The Court answered “yes”—the Guidance was “extraordinarily broad” and what the police had ended up doing was recording “non crime, non hate incidents.” The “chilling effect” on Article 10 rights was obvious.
So where next? How will it be revised and who will do it? And what happens to the 120K plus incidents already recorded under unlawful guidance? There are also two other legal actions now waiting in the wings; mine and that of “Miss B” who is objecting to the extension of the Guidance into schools. Both of us rely on issues of Article 8 privacy rights and data protection, which were not touched upon by the Court of Appeal in Miller’s case. We may have to wait to see what any revised guidance looks like before we are able to proceed.
The Court of Appeal considered that redrafting was a matter for the College of Policing, a private limited company without government oversight and accountable to no one. However, that is a position which has caused considerable unease, given how many professional reputations and salaries are now dependent on the “hate crime” industry.
It is comforting to see that this unease extends to Parliament. On 17 January 2022 the House of Lords debated the Police, Crime, Sentencing and Courts Bill. Baroness Williams introduced the Government’s amendment, which would confer power on the Secretary of State to issue a code of practice about the processing by the police of personal data relating to a hate incident, other than for the purposes of a criminal investigation. The code should examine whether and how such data should be recorded, when the “data subject” should be told they have been recorded, how long that data should be kept. The guidance would thus be open to Parliamentary scrutiny. The Government intends to work closely with “policing partners” which includes the College of Policing and National Police Chiefs Council and will also consider what happens to the existing non-crime hate incident data. The code must reflect the Court of Appeal judgment.
Lord Moylan was grateful the Government were taking it seriously, but pointed out that this code must be mandatory—not a power but a duty. He posed two questions:
First, will the Home Office ensure that the College of Policing ceases the practice set out in its current guidance, so that no more incidents are recorded while the new guidance is pending? Alternatively, what does the Minister envisage for this period, when we are waiting for the new guidance? Secondly, when the new guidance comes into effect—presumably with different criteria from the current guidance—what will happen to existing historic cases of non-crime hate incident records? Will they be retained as they are, will they be extinguished or will they be reviewed and modified in the light of the new guidance?
Lord Moylan was most concerned by the “chilling effect” of the current practice which would have “the most egregious potential consequences” if not properly controlled. He referenced not only Harry Miller but “many others” such as Rachel Meade the social worker facing the sack for Facebook posts expressing gender-critical views—despite the confirmation by the EAT that these are protected pursuant to the Equality Act.
Lord Blencathra was very concerned that if innocent people are to be put on a criminal records list, it must be done under regulations which have proper parliamentary scrutiny every time, rather than relying on the College of Policing, stating:
When the Court of Appeal in the Miller case announced that the College of Policing—not a statutory body but a private limited company, as we discussed last week—had produced and implemented partly unlawful guidance, the comment from an assistant chief constable at the college was: “We will listen to, reflect on, and review this judgment carefully and make any changes that are necessary.”
That is all right then. There is no need to bother 650 MPs or 800 Peers; this assistant chief constable will write our laws. Thank goodness the Home Office realised that it is completely wrong for the liberty and reputation of the individual to be subject to rules written by a private limited company. Thus, I partly welcome—no, largely welcome—the Home Office amendment before us today, but I am afraid it adopts the usual ploy that the Delegated Powers Committee sees in so many Bills, namely the first-time affirmative ploy. This means that the Bill says that the first set of regulations will be made by the affirmative procedure but subsequent revisions will inevitably be minor and technical. Therefore, we need not worry our pretty little parliamentary heads about them and the negative procedure will suffice.
Lord Sandhurst reminded their lordships of the determination of the Strasbourg court against the UK in the case of Dr Pal, a journalist who was arrested, detained and charged with “hate speech” against “AB.” The European court noted that the decision to arrest appeared to have been based on the subjective views of “AB” and that no consideration was given to the balancing exercise required between articles 8 and 10. The court noted it is of vital importance for those in authority to understand that the right to freedom of expression extends to ideas that may shock or disturb others.
There is no time scale for the when the new Guidance will come into force. Baroness Williams explained this is because the code will require careful drafting to ensure that it both meets the needs of the police, protects the public and properly accounts for the Court of Appeal judgment in Miller.
This entire experience has been a depressing and unedifying example of significant failures by the State to respect and protect fundamental human rights. It is simply wrong that Harry Miller as a private citizen had no option but to undergo the enormous emotional strain and financial burden required to restore our fundamental rights. Where were the politicians? The journalists? Where is the Equalities and Human rights Commission (EHRC)? They were no where to be seen—because no one cared about the silencing of “transphobes.”
I note and endorse the comments of Lord Sandhurst: “There must be fresh guidance… it must be clear and decisive—and it must be soon.”
And if its not? Then there are many eyes now on this. If the police persist in unlawful constraints on our fundamental freedoms, we will continue to exercise our legal rights of challenge. Let’s hope we do not have to. But we are ready.