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With all the doom and gloom about Coronavirus in the news, it’s been hard to think of much else than whether Christmas is going ahead or not. But yesterday the media had another big story to talk about, in the shape of a landmark legal ruling.

Harry Miller, a former police officer from Humberside, has been victorious in challenging police guidance, which once saw his social media posts recorded as “non-crime hate incidents”, at the Court of Appeal. His is, at the very least, an important victory for free speech.

To recap on the events that led to this moment…. In 2019, Miller found himself in trouble with the police after he posted alleged transphobic tweets. Infamously, he retweeted a a limerick with the line “Your breasts are made of silicone, your vacina goes nowhere”, only to find the police knocking at his door.

“We need to check your thinking”, they advised him. In total, 30 of his tweets/ retweets were recorded on the national database. (Worryingly, police have been able to do this in the past without those accused of hate crime incidents knowing – which can cause issues when future employers want to do a criminal records check).

Miller was not one to accept any of this, however. Those who have been following his case will know that he went to great lengths to achieve yesterday’s verdict, backed by the Free Speech Union.

Originally Miller challenged the actions of Humberside Police and the College of Policing guidance at the High Court, but he only proved successful on the first count. While the court deemed Humberside Police’s actions “disproportionate”, it resisted attempts to change policing guidance – which allows forces to record “gender critical” views as non-crime “hate incidents” – saying that it served “legitimate purposes”.

The Court of Appeal decided otherwise, however. Dame Victoria Sharp, one of England’s most senior judges who presided over the case, said that guidance had been “exceptionally wide”. She warned that there was nothing in it “about excluding irrational complaints”, and no mechanisms to “address the chilling effect which this may have on the legitimate exercise of freedom of expression.” 

Her words further emphasise two of the main issues with hate crime legislation, which is a) its scope and b) that it relies too much on perception of whether someone shows hostile intent.

The guidance defines a hate incident as “any non-crime incident which is perceived, by the victim, or any other person, to be motivated by hostility or prejudice”, but this clearly puts far too much emphasis on subjective interpretation of what’s “hateful”, with no incentive for the police to find more concrete evidence.

There are several things to say about this verdict. One is that it further protects the rights of “gender critical” activists – “gender critical” being, from my understanding, an umbrella term to describe those who believe sex is immutable – many of whom increasingly feel their position is under threat (see: the backlash against JK Rowling).

In general, it makes the police far likely to pop over, should they hear reports of a problematic tweet (something that should never result in such a call, incidentally).

The more depressing question is why the case ever got to court in the first place. As I have written before for ConservativeHome, there now seems to be a whole industry of “common sense” legal battles, in which victims of the woke (from police forces to Eton headmasters) need crowdfunders, and other types of monetary support, to achieve justice. It is an utter waste of everyone’s time, in the end.

Nonetheless Miller’s outcome is a wake up call, forcing people to, yet again, revisit hate crime, and if it needs serious reform. Already this year Priti Patel asked the College of Policing to stop classifying non-crimes as hate crimes – a good start – but the Government is up against campaigners for whom legislation will never go far enough. Scotland, for instance, passed legislation for “stirring up hatred”, in one particularly sinister new development.

With police recording 120,000 ‘non-crime hate incidents’ between 2014 and 2019, the question may not be whether we should re-write legislation, but rip it up and start all over again. When a limerick becomes an offence, we know we have a big problem. Let’s hope Miller’s victory, at the minimum, draws a line in the sand.