“The only way to protect freedom of speech is to keep bloody speaking.”
– Harry Miller
“In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society.”
– Justice Julian Knowles
Freedom of Speech won another battle in Britain, but one likely to enrage proponents of special rights for some at the expense of equal rights of all.
On January 23, 2019, PC Mansoor Gul, a Community Cohesion Officer with the Humberside Police Department, visited Harry Miller’s place of employment to speak to him about a series of messages he posted on Twitter.
After threatening him with criminal sanctions if Miller continued to post his political opinions on Twitter, PC Gul said “the incident” would be recorded as a “non-crime hate incident.”
This sparked Miller’s legal challenge against both the actions of the Humberside Police Department and the Hate Crime Operational Guidance manual PC Gul used as his rationale for harassing him.
In a decision published on February 14, 2020, Justice Knowles quoted both George Orwell’s 1984 and the European Convention on Human Rights as he severely chastised the Humberside Police for violating Harry Miller’s right to freedom of expression.
From the decision:
[A]lthough what was said between PC Gul and the Claimant is disputed and I cannot resolve that dispute, the undisputed facts plainly show that the police interfered with the Claimant’s right to freedom of expression.
PC Gul’s actions in going to the Claimant’s place of work and his misstatement of the facts, his warning to the Claimant, coupled with the subsequent warnings by the police to the Claimant that he would be at risk of criminal prosecution if he continued to tweet (the term ‘escalation’ was never defined or explained) all lead me to conclude that the police did interfere with his Article 10(1) rights even though he was not made subject to any formal sanction.
There is also the point that the police created a Crime Report which referred to the Claimant as a ‘suspect’.
What the Claimant wrote was lawful. The Claimant was just one person writing things which only one other person found offensive out of however many read them. Mrs B chose to read the Claimant’s tweets. The tweets were not directed at her.
If the Claimant’s tweets had been reported in a newspaper and Mrs B had complained as a consequence, then I seriously doubt it would have been recorded as a hate incident. He would have been expressing himself in a public forum (as he did on Twitter) for people to read, or not, what he had to say. What happened in this case was not in my judgment meaningfully different.
In his treatise On Liberty (1859) John Stuart Mill wrote:
“If all mankind minus one, were of one opinion, and only
one person were of the contrary opinion, mankind would be
no more justified in silencing that one person, than he, if he
had the power, would be justified in silencing mankind.”
For the reasons I have set out, whilst Mrs B made a complaint that was recorded under HCOG, the police’s treatment of the Claimant thereafter disproportionately interfered with his right of freedom of expression, which is an essential component of democracy for all of the reasons I explained at the beginning of this judgment.
Justice Knowles rejected Miller’s challenge of the lawfulness of the U.K. College of Policing‘s Hate Crime Operational Guidance manual, ruling it “serves legitimate purposes and is not disproportionate”.
“[This ruling] is a strong warning to local police forces not to interfere with people’s free speech rights on matters of significant controversy,” Harry Miller’s solicitor, Paul Conrathe said after the decision.
One British MP wondered why police were acting like Orwellian thugs.
“What on earth are the police doing investigating if no crime has been committed? Have they not got better things to do than acting as thought police?” asked Cleethorpes MP Martin Vickers.
We have never had a Cheka, a Gestapo or a Stasi
About Harry Miller’s emotional response to PC Gul’s visit, Justice Knowles wrote:
I bear in mind the Defendants’ submission that I should regard the Claimant’s evidence about his reaction with caution. However, I accept what he said in  of his witness statement about what he felt following his conversation with PC Gul:
“I felt a deep sense of both personal humiliation, shame for my family and embarrassment for my Company, its customers, suppliers and employees. I also felt anxious as to what this might mean for me, the family and the business. What did a hate incident say of me and what would happen if it escalated? How could it escalate? How would I cross the line into criminality? Where was the safe place to engage in critical comment about deeply concerning legislative possibilities …”
It seems to me that this would be the reaction of anyone who had been exercising their free expression rights and then received a visit from the police as a consequence.
Mr Auburn and Mr Ustych both sought to play down the police’s actions. They said that there had been no interference with the Claimant’s free expression rights or, if there had, it was at a trivial level.
In my judgment these submissions impermissibly minimise what occurred and do not properly reflect the value of free speech in a democracy. There was not a shred of evidence that the Claimant was at risk of committing a criminal offence.
The effect of the police turning up at his 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.
Harry Miller is Chief Executive Officer of the political advocacy group Fair Cop, “a group of gender-critical lawyers, former and serving police officers, writers and professionals dedicated to upholding Articles 8–11 of the European Charter of Human Rights.”
On January 23, 2019, based on a complaint about the content of 31 tweets and retweets on Harry Miller’s Twitter feed between November 2018 and January 2019, PC Mansoor Gul, a Community Cohesion Officer with the Humberside Police Department, decided he must interview Harry Miller in an effort to stop matters from “escalating to criminal offences being committed.”
The complainant, identified only as Mrs. B in court documents, describes
herself as a ‘post-operative transgender lady’. In her witness statement, Mrs. B said Harry Miller’s tweets were brought to her attention by a friend. She had not seen them herself.
PC Gul went to Mr. Miller’s place of employment to reprimand him. Mr. Miller was not there.
While the constable made it clear Mr. Miller was not under arrest, he also stated “the incident” would be recorded as a “non-crime hate incident.”
Mr. Miller recalls his conversation with PC Mansoor Gul regarding a specific quote he retweeted.
“I informed PC Gul that I was not the author of the verse and that it was simply expressing in verse the sense of imbalance of power between the sexes in the context of transgenderism. He said by Liking and Retweeting it on Twitter, I was promoting Hate.
I again asked for, and received, confirmation that neither the verse, nor any of the other alleged 30 tweets, were criminal. I then asked PC Gul why he was wasting my time.
PC Gul said ‘I need to check your thinking’.
I replied: ‘So, let me get this straight, I’ve committed no crime. You’re a police officer. And you need to check my thinking?’
PC Gul answered: ‘Yes’.
I said, ‘Have you any idea what that makes you ? ‘Nineteen Eighty-Four’ is a dystopian novel, not a police training manual.’”
Page 60 of the Hate Crime Operational Guidance manual defines a “non-crime hate incident” as:
any non-crime incident which is perceived by the victim, or any other
person, to be motivated (wholly or partially) by a hostility or prejudice.
If the hostility or prejudice is directed at one of the five monitored strands (race, religion, sexual orientation, disability and transgender) it should be recorded as a hate incident.
In his decision, Justice Knowles wrote:
“I conclude that Mrs B made a voluntary choice to read the tweets. They were not directed at her. Indeed, the conclusion which I draw from the evidence is that they were not directed at anyone in particular but were simply posted on Twitter to be read by the Claimant’s Twitter followers or anyone else who might come across them, if they could be bothered to read them. They were certainly not specifically targeted at the transgender community.”
Regarding the Humberside Police Department’s decision to classify them as a “non-crime hate incident” Justice Knowles concluded:
“It would therefore appear that the matter was recorded as a non-crime hate incident simply on the say so of Mrs B and without any critical scrutiny of the tweets or any assessment of whether what she was saying was accurate. As I shall show in a moment, what she told the police was not accurate.”
In his witness statement to the court, Harry Miller wrote the following:
“17. I believe that trans women are men who have chosen to identify as women. I believe such persons have the right to present and perform in any way they choose, provided that such choices do not infringe upon the rights of women. I do not believe that presentation and performance equate to literally changing sex; I believe that conflating sex (a biological classification) with self-identified gender (a social construct) poses a risk to women’s sex-based rights; I believe such concerns warrant vigorous discussion which is why I actively engage in the debate. The position I take is accurately described as gender critical.
18. In this context (political reform) I want to raise awareness by stating that which used to be instinctively obvious – a biological man is a man and a biological woman is a woman. To claim otherwise is extraordinary. Extraordinary claims require both extraordinary evidence and extraordinary scrutiny prior to becoming law.”
Selected Quotes From the Decision
Selected quotes from Justice Julian Knowles February 14, 2020 ruling, including the quotes he selected from past British court decisions:
“… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or
-R v Central Independent Television plc  Fam 192, 202-203
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having …”
-Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375
“Freedom of expression constitutes one of the essential foundations of such a 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’. This means, amongst other things, that every ‘formality’, ‘condition’, ‘restriction’ or ‘penalty’ imposed in this sphere must be proportionate to the legitimate aim pursued.”
-Handyside v United Kingdom (1979-80) 1 EHRR 737 from the European Court of Human Rights
Harry Miller: My Free Speech High Court Victory Over Alleged Anti-Trans Tweet & Police Investigation