When “hate” tweets are not a crime – but disproportionate action by the cops impedes a tweeter’s freedoms

The boundaries of free speech were at issue in two recent court cases, one in Britain, the other in New Zealand.

In the British case, a judge ruled that the police response to an ex-officer’s tweets (allegedly transphobic) was a “disproportionate interference” with his right to freedom of expression.

The judge said:

“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”

In the New Zealand case, the judge was spared the need to rule in favour of …

  • Businessman Sir Bob Jones, who wrote in a newspaper column that Waitangi Day should be replaced with Māori Gratitude Day and Māori bring Pākehā breakfast in bed; or
  • Film-maker Renae Maihi, who said in evidence she recognised Sir Bob was not seriously calling for Māori to bring breakfast in bed.   She nevertheless had responded by gathering signatures for a petition which called for Sir Bob’s knighthood to be stripped and described him as racist and an author of hate speech.

Sir Bob said the petition defamed him.

The defence argued that joking doesn’t diffuse racism.

The heady issues at stake were not resolved – at least, not by the judge. Sir Bob Jones withdrew his action last Friday.

According to Radio New Zealand,Sir Bob explained in a statement

“I filed these proceedings because I was deeply offended by Ms Maihi’s allegations.

“I am not a racist.”

He said he has decided to end proceedings because “the parties may never align on what is acceptable humour, however, no malice was intended by either”.

In a report on the case earlier in the week, the New Zealand Herald noted:

  • The Human Rights Commission released a statement after NBR removed the column from its website and said: “Sir Bob Jones and those outlets who choose to publish this kind of rhetoric need to be prepared for the public backlash and condemnation they provoke and deserve.”
  • A Press Council – now Media Council – complaint by Mel Whaanga, who said Jones’ column was “racist”, was dismissed but the opinion piece was considered to be “malicious and infantile” by most of the members.

At much the same time as the Jones case was being heard, a judge in Britain pronounced on a “hate” case brought before him.

He ruled the police response to an ex-officer’s allegedly transphobic tweets was unlawful.

The BBC reported that Harry Miller, the former policeman, was visited by Humberside Police at work in January last year in response to a complaint about his tweets.

He was told he had not committed a crime, but the police action would be recorded as a non-crime “hate incident”.

Miller had posted a number of tweets between November 2018 and January 2019 about transgender issues as part of the debate about reforming the Gender Recognition Act 2004.

In one tweet he wrote:

“I was assigned mammal at birth, but my orientation is fish. Don’t mis-species me.”

This was among several tweets reported to Humberside Police as being allegedly transphobic.

Officers visited Miller’s workplace and then spoke with him on the phone, and – according to the judge – he was left with the impression “that he might be prosecuted if he continued to tweet”.

Miller’s barrister, Ian Wise QC, argued the force’s response had sought to “dissuade him from expressing himself on such issues in the future” and had a “substantial chilling effect” on his right to free speech.

The judge agreed,

Mr Justice Julian Knowles said the effect of police turning up at Miller’s place of work

” … because of his political opinions must not be underestimated.

“To do so would be to undervalue a cardinal democratic freedom.

“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”

The judge further said Miller “strongly denies being prejudiced against transgender people” and had regarded himself as a participant in a public debate.

He said only one person, known in court as Mrs B, had complained about the tweets and they had been recorded as a hate incident “without any critical scrutiny…or any assessment of whether what she was saying was accurate”.

The judge said:

“The claimants’ tweets were lawful and there was not the slightest risk that he would commit a criminal offence by continuing to tweet.

“I find the combination of the police visiting the claimant’s place of work, and their subsequent statements in relation to the possibility of prosecution, were a disproportionate interference with the claimant’s right to freedom of expression because of their potential chilling effect.”

Speaking after the ruling, Miller, said:

“This is a watershed moment for liberty – the police were wrong to visit my workplace, wrong to ‘check my thinking’.”

His solicitor, Paul Conrathe, added:

“It is a strong warning to local police forces not to interfere with people’s free speech rights on matters of significant controversy.” 

Not so chuffed,  Helen Belcher, who co-founded Trans Media Watch, said:

“I think trans people will be worried it could become open season on us because the court didn’t really define what the threshold for acceptable speech was.

“I think it will reinforce an opinion that courts don’t understand trans lives and aren’t there to protect trans people.”

Miller, 54, also launched a wider challenge against the legality of College of Policing guidelines on hate crimes.  This was rejected.

Mr Justice Knowles ruled they “serve legitimate purposes and [are] not disproportionate”.

The guidelines define a hate incident as

” … any non-crime incident which is 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”.

Clive Coleman, the BBC’s Legal Affairs Correspondent, said the police guidance on non-crime hate incidents was developed after the murder of a black teenager, Stephen Lawrence, in a racist attack in 1993.

Its aim is to deal with hate incidents before they escalate into serious hate crimes.

Each year more than 25,000 non-crime hate incidents are logged by UK police. The bulk relate to race and disability.

According to the Daily Mail, police have recorded almost 120,000 ‘non-crime hate incidents’.

Despite police accepting that such incidents are not crimes, they have still been logged on a system and can show up in criminal records checks – preventing the accused from getting jobs.  

Under Hate Crime Operational Guidelines, forces must record any actions deemed to be motivated by an element of hate, such as racism or transgender-phobic comments, even if there is no evidence to prove them.

The Daily Mail report included an account of an interview between Miller and a police officer on January 23 last year.

The PC said he had received a complaint about Miller’s  tweets from a ‘victim’ — an unnamed member of the public ‘down south’ — who had alerted the hate crime unit of Britain’s biggest police force, London’s Scotland Yard.

Officers at the Yard, in turn, asked Humberside police to interview Harry after tracing him to his plant and machinery business in the force’s area.

The policeman told Miller he was in trouble for retweeting a ‘transphobic’ limerick.

He was told he was also being investigated for tweeting support for BBC Woman’s Hour presenter Jenni Murray, who had been criticised by Oxford students after writing a newspaper article questioning whether transgender women are ‘real women’.

Miller was told in the conversation that he had not broken the law but was guilty of a ‘non-crime’ hate incident.

When Miller asked why the officer kept calling the person who had made the complaint a ‘victim’, when no crime had been established, he was told ‘that’s just how it works’.

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