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College of Policing ordered to dial down the “chilling” effect on public debate

Sex Matters welcomes today’s landmark judgment from the Court of Appeal on the recording of non-crime hate incidents. 

It comes three years after Harry Miller received a visit from Humberside Police and had a non-crime hate incident recorded against his name after his tweets were reported as transphobic by a transactivist. 

Some of Harry Miller’s tweets

Harry Miller is just one of many people who have had non-crime hate incidents recorded for posting about sex and gender on social media. This is part of a wider effort to shut down and punish public debate on sex and gender.

Sex Matters’ director, Dr Emma Hilton, also had a non-crime hate incident recorded against her by the UK police for tweeting about science:

“I was informed of this incident by the University of Manchester, after the person who reported me to the police tried to leverage it against me with my employer (as well as extensively using it to attempt to discredit me on social media and within the mainstream media).

It is my own view that the complaint was an attempt to harrass me and to, bluntly, shut me up.”

Humberside police force was acting on the College of Policing’s Hate Crime Operational Guidance, which directs police forces to “record incidents that are perceived by the victim [sic] or any other person to be motivated by hostility or prejudice against a person who is within one of the monitored strands, irrespective of whether there is any evidence of hostility.” (The five monitored strands are disability, race, religion, sexual orientation and transgender identity.)

Irrational complaints should be dismissed

The Court of Appeal unanimously allowed the appeal, saying that the guidance clearly constituted a real and significant interference with the right to freedom of expression and had the potential to create a chilling effect in relation to public debate.

The judgment finds that while the guidance contained narrow exceptions, such as where complaints are being used to harass celebrities or public figures, it did not allow for police to use “common-sense” discretion to dismiss “irrational” complaints.

The judgment notes that: 

“The threshold for hostility is low (it can include ill-will, ill-feeling, spite, contempt, prejudice, unfriendliness, antagonism, resentment and dislike). Further, the police are responsible for managing an interaction to ensure that the victim has no residual feelings of secondary victimisation, which can include feeling they have experienced indifference or rejection from the police when reporting a crime or incident. Once again, the issue is not to be grounded in an objective assessment of the evidence. As the guidance also says in this context, it doesn’t matter whether there is victimisation or not, or even whether it is reasonable for the victim to feel they have been victimised.”

This guidance was a charter for the over-sensitive which allowed people who have taken offence at disagreement to be named as “victims”, and to use that status to put pressure on those with whom they disagree. 

The judgment holds that perception-based recording of non-crime incidents is not inherently unlawful, but requires additional safeguards to protect freedom of expression. The College of Policing must now redraft its guidelines. 

We welcome the judgment, but we think that greater attention needs to be given to the institutional context in which the guidance was drafted and implemented. The overwhelming majority of the UK’s police forces are still members of the Stonewall Diversity Champions scheme; many will be seeking to win points in the Stonewall Equality Index. That affiliation means that police forces are actively training officers to abandon rationality and common sense, and to use internal disciplinary processes to punish people who express views similar to those of Harry Miller or Emma Hilton. 

The Home Office also remain members of the Stonewall scheme. 

Can Stonewalled police forces distinguish between rational and irrational complaints?

Stonewall’s training of police forces goes against common sense and encourages irrational feelings of victimhood. It seeks to inculcate such ideas as these: 

  • women can have penises 
  • males can be lesbians 
  • sexual orientation includes pan-sexuality, “aromanticism” and “greyromanticism” 
  • calling a man “he” can be a grave insult and existential threat
  • some people are male one day and female another 
  • children can be “born in the wrong body” 
  •  a rape victim who objects to being examined by a male medical professional who identifies as a woman is a bigot. 

As Professor Kathleen Stock said in her evidence in Harry Miller’s case, neutral factual utterances such as “Transwomen are men”; “Transwomen aren’t women” and the use of the pronouns “he/him” rather than “she/her” in referring to a transwoman are perceived as “hateful” by trans advocacy groups.

Stonewall advises police forces to adopt definitions that are not in line with the law or common sense. It tells them to take a “zero-tolerance approach towards discrimination and harassment based on gender identity”. Male officers who identify as women (on a full or part-time basis) must be free to use women’s toilets, showers and locker rooms from the moment they choose to do so. Police officers who Identify as “gender-fluid” should be given two different warrant cards “to reflect their gender on different days”. 

Female police officers who object to policies that expect female officers to share a shower room with a member of the opposite sex and who express disagreement are subject to internal disciplinary investigations. 

The College of Policing is chaired by Lord Herbert, “LGBT Envoy” to the government, who has defended the membership of the Stonewall scheme by government departments. Lord Herbert is currently also promoting new legislation to “ban conversion therapy”. The proposals would criminalise parents, teachers and therapists who disagree with transitioning children.

We are glad that the Court of Appeal has recognised the chilling effect of the College of Policing Guidance and ordered more safeguards. But we fear that the judges did not understand the extent to which common sense, rationality and independence within police forces and wider police policy and regulatory activity have been undermined by years of Stonewall membership. 

Police forces that are trying to win a place on the Stonewall Equality Index are not focused on the law, but on “Stonewall Law”. Their ability to understand and implement safeguards to protect people from irrational, vexatious and malicious complaints will be impaired, because they have been trained to accept such complaints as immune from evidence-based scrutiny. This makes us fearful, too, about how they would implement the proposed new law on “conversion therapy” currently being promoted by the same organisations that have persuaded the police to make unlawful use of “non-crime hate incidents” to silence debate.

The case of Allison Bailey – the black lesbian barrister Stonewall tried to get thrown out of her chambers for her gender-critical stance – illustrates the kind of complaint that Stonewall itself undertakes and encourages, and the kind of utterance it judges to be transphobic. 

Some of Allison Bailey’s tweets

The bigger picture

Individual court cases are valuable, and we congratulate Harry Miller on his perseverance, and on his win for rationality and common sense. 

But judges looking at particular cases in isolation cannot be expected to join all the dots, particularly when they themselves have been instructed by their own guidance (the Equal Treatment Bench Book) that terms used in legislation such as “transsexual” and “gender reassignment” can be unacceptable and offensive, and that it is discrimination to act on complaints from female customers in a health spa about a person revealing an unexpectedly male body in the sauna. 

We call for:

  • police forces to review their own internal policies in relation to sex and gender, and their membership of the Stonewall Schemes in light of this decision
  • the Minister of State for Crime and Policing to undertake and publish a review of whether membership of the Stonewall schemes by police forces is compatible with safeguarding freedom of expression
  • the government to undertake a public inquiry into the influence of Stonewall and associated organisations over public bodies.