Do you have a right to be offended?

The High Court in London recently considered the lawfulness of published guidelines on hate crime.

By way of background, the Claimant critically tweeted about transgender issues over a three-month period from November 2018. He denied any prejudice, asserting that he was merely contributing to a debate on law reform on foot of a Government consultation.

The first Defendant publishes ‘Hate Crime Operational Guidance’ which requires police forces to record ‘hate incidents’ as either criminal or not. The latter is defined in this context as ‘[a]ny 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.’

The Claimant’s tweets were reported to the second Defendant by a transgender woman as ‘transphobic’. On foot of this, Police visited him at his place of work to speak to him about his tweets. The Claimant was left with the impression that he may be liable to prosecution if he kept tweeting on the subject. Indeed, the second Defendant issued a press release from an Assistant Chief Constable which referred to the possibility of criminal proceedings if matters ‘escalated’.

In his application for judicial review the Claimant challenged the lawfulness of the ‘Hate Crime Operational Guidance’ contending that it breached his freedom of expression and the right to free speech.

The Court held that the guidance is lawful, it serves legitimate purposes and is not disproportionate. That said, the Second Defendant’s actions were found to have disproportionately interfered with the Claimant’s freedom of expression.  

In a judgement that drew on various literary influences, from George Orwell’s Animal Farm (1945) to On Liberty (1859) by John Stuart Mill, Mr Justice Knowles emphasised the vital importance of free speech in a democratic society which extends to ‘not only the inoffensive, but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative, and that the freedom only to speak inoffensively is not worth having’:

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.       

This judgement should not be construed as a Tweeter’s charter to be offensive, rather as a restatement of the legal position when it comes to balancing competing rights. 

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Miller V The College Of Policing And The Chief Constable Of Humberside 2020 Ewhc 225 Admin
Miller v The College of Policing and The Chief Constable of Humberside [2020] EWHC 225 (Admin)

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