“If liberty means anything at all, it means the right to tell people what they do not want to hear.”
“… 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 Freedom means the right to publish things which government and judges, however well motivated, think should not be published.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 statute.”
“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises. 2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”
“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.”
“7. … Twitter was not invented until 2006 … but, as is the way with modern means of communication, its daily use by millions of people throughout the world has rocketed. 8. Each registered user adopts a unique user name or ‘Twitter handle’ … 9. In very brief terms Twitter enables its users to post messages (of no more than 140 characters) on the Twitter internet and other sites. Such messages are called tweets. Tweets include expressions of opinion, assertions of fact, gossip, jokes (bad ones as well as good ones), descriptions of what the user is or has been doing, or where he has been, or intends to go. Effectively it may communicate any information at all that the user wishes to send, and for some users, at any rate, it represents no more and no less than conversation without speech. 10. Those who use Twitter can be ‘followed’ by other users and Twitter users often enter into conversations or dialogues with other Twitter users. Depending on how a user posts his tweets, they can become available for others to read. A public time line of a user shows the most recent tweets. Unless they are addressed as a direct message to another Twitter user or users, in which case the message will only be seen by the user posting the tweet, and the specific user or users to whom it is addressed, the followers of a Twitter user are able to access his or her messages. Accordingly most tweets remain visible to the user and his/her followers for a short while, until they are replaced by more recently posted tweets. As every Twitter user appreciates or should appreciate, it is possible for non-followers to access these public time lines and they, too, can then read the messages. It is also possible for non-users to use the Twitter search facility to find tweets of possible interest to them.”
“The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use Twitter for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.”
“Trans people continue to face significant barriers to full participation in public life. Reported hate crime is rising. Reported self-harm and suicide rates, particularly amongst young trans people, are extremely concerning. Trans people continue to face discrimination and stigma, in employment and in the provision of public services. One public service that we know trans people are concerned about is the legal process for changing gender as set out in theGender Recognition Act 2004 . This Act allows an individual to get their gender legally recognised, giving them access to the legal rights of the gender they identify with and a new birth certificate issued in that gender. Many of the trans respondents to our LGBT survey said they found the current system intrusive, costly, humiliating and administratively burdensome. Whilst many trans people want legal recognition, too few are able to get it. In too many cases the current system prevents them from acquiring legal recognition of who they are, denying them the dignity and respect that comes with it. It often leaves trans people in the difficult situation of living in one gender, and holding Government issued forms of identification, credit cards, driving licence and all other documents in that gender, but a birth certificate and legal status in another. This consultation seeks views on how the Government might make it easier for trans people to achieve legal recognition. The way this has been achieved in some other countries around the world is to remove the requirement for a medical diagnosis and to streamline other parts of the process. This is one option that the Government wishes to ask for views on but no firm decisions on our eventual approach have been taken. The legal recognition process is separate from the pathway that trans people follow to obtain medical treatment that they may wish to have, such as hormones or surgery. The questions about any removal of a requirement for a medical diagnosis in the context of this consultation is only with regard to the legal recognition process. We also want to be clear that this is an explorative consultation and we do not have all the answers. That is why, as we consult, we are mindful of the need to engage with all perspectives. We particularly want to hear from women’s groups who we know have expressed some concerns about the implications of our proposals.”
“12. On Twitter, my account name (or handle) is @HarrytheOwl. For the past two years, I have tweeted extensively about proposed reforms to theGender Recognition Act 2004 (GRA); the ontology of sex and gender; the potentially dangerous consequences of selfidentification to existing sex based rights; the distortion of commonly understood biological concepts, such as male and female, via the introduction of enforced language, including pronouns; the apparent politicisation of the police in their open campaigning to support the proposed change of law to a policy of self-identification; the weaponization of the police by pressure groups in favour of the proposed changes to the law to the detriment of contrary voices. … 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.”
“Just had son on from Oxford. The anti-Jenni Murray crowd were out baying, screaming and spitting at students who went to see Steve Bannon, and barricaded their way, not just to the meeting, but when they attempted to retreat to their rooms. Twats.”
“This is an account, as relayed by my son, of what he witnessed at Oxford University. Dame Jenni Murray is Radio Four presenter of Woman’s Hour. She wrote an article in March 2017 in the Sunday Times which headlined “Be trans be proud – but don’t call yourself a ‘real woman’”
“Gloating bastard Harrop doing what he does best”
“This tweet identifies Trans Rights Activist, Dr Adrian Harrop, who appears to be taking delight at the permanent ban from Twitter by the Canadian feminist, Meghan Murphy. Harrop hints at being partially responsible for the ban. Meghan Murphy founded the feminist blog and podcast ‘Feminist Comment’ in 2012, which won the best feminist blog awards in the Canadian blog awards of the same year. Her work has appeared in numerous publications including the New Statesman, Al Jazeera and the National Post in Canada. She is gender critical. Harrop is currently the subject of a full GMC enquiry in relation to both online and off-line behaviour towards at least two women and towards me and my family.”
“Is Trans Day of Remembrance a thing, then ? Like, an actual one ?”
“’Give me the child and I’ll give you the man.’ The reason there’s no critical assessment is this: They’re building an army.”
“Dear @Twitter Given your rules on dead naming, could you please clarify who won gold at the 1976 Olympic men’s decathlon, please ?”
‘If Jenner was always a woman, why was she competing in a men’s event ?’
“Ah yes; the troubled 40s when my rainbow wearing non binary 1920’s gran was made to choose between having a lady vagina or a lady penis. It really was Sophie’s Choice.”
“If we asked Holly and Jessica who murdered them, I imagine they wouldn’t say ‘A woman called Nicola’. #IanHuntleyIsAMan” #IanHuntleyIsAMan”
“It’s awful reading threads from parents who don’t accept their kids are trans & are actively suppressing them. I just read one and I feel sick. What they’re doing is inhumane, unscientific, and extremely dangerous. As the parent of a happy trans teen, it breaks my heart.”
“Had to read this crap pile twice to be sure it wasn’t a parody account.”
“I was assigned Mammal at Birth, but my orientation is Fish. Don’t mis species me. fuckers.”
“You know the worst thing about cancer ? It’s transphobic.”
‘Grow a beard, Hon … s’all the rage with the transwomen, appaz.’
“Transwomen are women. Anyone know where this new biological classification was first proposed and adopted ?”
“Seriously, do we know when this bollocks first appeared ?”
“… makes an enquiry regarding the historical origin of the phrase ‘transwomen are women’. Inclusion of the word ‘bollocks’ indicates my opinion of that statement. My opinion is not based on unconsidered prejudice; indeed I have offered a cash reward to anyone who can justify the statement without reference to tautology, gendered essence, reliance of sexist stereotypes, or by citing generally accepted science. My understanding is that gender is a social construct, that sex is a biological classification, that conflation between sex and gender is dangerously wrong.”
“Any idea why men aren’t being more vocally GC ? I know there’s a few of us, but I’d expect way more. And, could I ask @Glinner why you think there are not more GC voices on the box ? You’d think it would be ripe for satire.”
“In this tweet I ask a question. Why are men not being more gender critical ? I direct a question to the writer Graham Linehan (@Glinner) who writes TV situation comedy. I suggest that the subject is ripe for satire.”
“Your breasts are made of silicone/ your vagina goes nowhere/ And we can tell the difference/ Even when you are not there/ Your hormones are synthetic/And let’s just cross this bridge/What you have, you stupid man/Is male privilege”
“I was so alarmed and appalled by his brazen transphobic comments that I felt it necessary to pass it (sic) on to Humberside Police as he is the chairman of a company based in that force’s area.”
“I doubt very much that Mr Miller has met any transgender people. Never even come across them. Never even interviewed them for a position with his firm. Never employed them. Never even sat down for a cup of tea with them. So, what makes him an expert suddenly in transgender issues ? In his interview with The Spectator, he claims he is ‘concerned’ with the introduction of self-ID. Self-ID has nothing to do with him. Doesn’t affect him at all. I doubt he has even read the proposals behind it. In his interview with the The Telegraph, there is a desire to protect the female members of his family. Laudable, of course. But protect them from WHAT ? Does he, in his feverish imagination, honestly believe that transgender people are a threat ? Seriously ? He claims to be a ‘feminist’. I’d like to ask him how many females he actually employs at his firm, outside of his secretary. He is NO feminist.”
“He and his followers on Twitter honestly believe he has not done anything wrong. They say a crime has not been committed. (Clue: ‘Hate CRIME’. Now maybe that might need to be reworded but it is clear he has still committed an offence). … All the transgender community want is to be LEFT IN PEACE. Transgender people ARE who they say they are. Trans women ARE women and Trans men ARE men. It NOT for the likes of Mr Miller to decide who is what, nor is it any of his God damn business. All they wish is to be treated with full and unswerving respect from their peers – respect should be automatic and, contrary to popular opinion, not earned. To be treated equally and fairly before the law. That is it. No more, no less. They are not monsters. They are not predators. They are not weirdos. They are not freaks. They are, in nearly every single case, decent, law-abiding people who cause harm to no-one. The amount of vitriol, abuse or worse they have to take on a daily basis from people like Harry Miller is an absolute disgrace and an affront to any society that calls itself civilised.”
“I’ll finish by addressing Mr Miller directly: Mr Miller, whether you or your followers like it or not, you have been served notice that your disgusting, bigoted, bullying, utterly reprehensible behaviour is NOT going to be tolerated any longer. That is NOT a threat either.”
“I do not think it is an exaggeration to state that, should this man and his organisation win this case, transgender people can kiss the few rights they have goodbye. It will be truly ‘open season’ on the transgender community, a community that has suffered more than enough from constant vile and unjustified attacks on them in real life, in the media and online. Do you know what it is like to be transgender in this country in 2019 ? To be denied your rights to be the person you want to be ? To be subject to disgusting and unwarranted attacks just for having the temerity to exist ? To be subject to the most awful discrimination ?”
“6. I completely reject any suggestion that I am racist, homophobic or transphobic. The suggestion that I am serves to show how ignorant the writer is, and that the writer simply does not know me or anything about me. … 8. The assertion that I would have been making ‘the same comments’ (clearly meaning bigoted comments) about Jewish people 80 years ago, about black and Asian people 40 years ago and gay people 30 years ago is simply gratuitously offensive.”
“In this case and generally, the CRT staff member’s assessment is based upon the initial account from the person reporting. There may be instances, where it is not considered appropriate to record a ‘hate indicent’ on the facts of a particular case. Staff will use a common sense and a proportionate approach to recording in all circumstances. It is not the case that report of a hate incident will be recorded as such.”
“Threat – low [REDACTED] Harm – emotional Risk – unlikely Investigation – named suspect, no factors for CSI, no known witnesses, no CCTV, twitter posts available Vulnerabilities – none known Engagement – passed to CMU”
“I would like to report an individual by the name of Harry Miller who works for […] Immingham, South Humberside. Miller has been making transphobic remarks on his Twitter account under the handle @HarryTheOwl. These comments are designed to cause deep offence and show his hatred for the transgender community.”
“Victim states that she has not been contacted by the suspect. She was informed that the suspect had made comments about the transgender community by another person. Victim states they would like the suspect speaking to but on further research the victim has herself been making derogatory comments on [REDACTED] about people who are making comments about transgender people.”
“9. Where I am assigned a hate incident to investigate, I review the report and decide whether it has been correctly classified as a hate incident. If, having reviewed the evidence available and spoken to the victim, I consider it to be more serious than a hate incident, then I can recommend that it be re-classified as a hate crime. Likewise, if having reviewed the evidence, I am satisfied that no action is required then I can close the matter without speaking to the alleged offender. Where I am satisfied, that an incident has been correctly classified as a hate incident then, as a bare minimum, I would speak to people involved. I do this for a number of reasons but in the main, it is to ensure I have information available from all parties, to make people aware of the impact of their behaviour on others and to prevent matters from escalating into hate crimes being committed.”
“I did not identify any criminal offence but I was satisfied that there was a perception by the victim that the tweets were motivated by a hostility or prejudice against transgender people.”
“Having reviewed the nature of the tweets, the impact on the victim and the risk of matters escalating to criminal offences being committed, I took the decision to speak with Mr Miller.”
“Later on the same day PC GUL received a call from Mr Miller and discussion took place about the tweets. Mr Miller wasn’t happy and asked if he had committed a crime, PC Gul clearly explained to him that although the tweets were not criminal, they were upsetting many members of the transgender community who were upset enough to report them to the police. PC GUL explained to Mr Miller that it had been recorded as a HATE INCIDENT and PC GUL wanted to let him know about it also get his side of the story. PC GUL’s thought process was that all parties need to be spoken to make a fair and balanced assessment. This was done in line with national guide lines in terms of hate incidents. PC GUL further explained to MR MILLER that although his behaviour did not amount to criminal behaviour, if it escalated then it may become criminal and the police will need to deal with it appropriately. MR MILLER was not happy, conversation took place around human rights act and freedom of speech and opinion. PC GUL explained that he fully agree and understand (sic) that but if there is a criminal behaviour then it would be dealt with as such. MR MILLER was not happy and informed PC GUL that he would take this to the national media.”
“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.’”
“35. PC Gul explained that, on the basis of the third party complaint, a Hate Incident Record would be generated, regardless of there being no crime nor any evidence of hate. He warned me that continuing to tweet Gender critical content could count as an escalation from non crime to crime, thus prompting further police intervention. PC Gul did not elaborate on how such escalation might occur. However, the clear implication was that, in order to avoid such escalation into criminality, I would be strongly advised to cease tweeting gender critical content. At the time, I instinctively felt that the intervention by PC Gul was wrong, coercive and oppressive although I was not yet sufficiently cognisant in the European Convention on Human Rights to quote Article 10 at him. … [38] Finally, PC Gul offered his final words of advice, words that I will never forget as I was so stunned by them. He said, ‘You have to understand, sometimes in the womb, a female brain gets confused and pushes out the wrong body parts, and that is what transgender is. I replied, ‘You’ve got to be kidding me. Wrong body parts ? You have to know that is absolute bullshit. Is this really the official police line ?’ PC Gul said, ‘Yes, I have been on a course.’ I ended the call shortly after this. The call lasted 34 minutes.”
“The actions taken by the individual and his comments around transgender caused someone distress. We take all reports of hate related incidents seriously and aim to ensure they do not escalate into anything further. The correct decision was made to record the report as a hate incident … and to proportionately progress (sic) by making contact with the individual concerned to discuss the actions on social media.”
“The initial intervention by PC Gul and the subsequent statements of ACC Young and A/Inspector Wilson cannot be interpreted as anything other than attempts to discourage me, and other interested parties from making such statements and to withdraw from national, political conversation.”
“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.”
“Perception-based recording refers to the perception of the victim, or any other person. It would not be appropriate to record a crime or incident as a hate crime or hate incident if it was based on the perception of a person or group who had no knowledge of the victim, crime or the area, and who may be responding to media or internet stories or who are reporting for a political or similar motive. The other person could, however, be one of a number of people, including: • police officers or staff • witnesses • family members • civil society organisations who know details of the victim, the crime or hate crimes in the locality, such as a third-party reporting charity • a carer or other professional who supports the victim • someone who has knowledge of hate crime in the area – this could include many professionals and experts such as the manager of an education centre used by people with learning disabilities who regularly receives reports of abuse from students • a person from within the group targeted with the hostility, eg, a Traveller who witnessed racist damage in a local park. A victim of a hate crime or incident does not have to be a member of a minority group or someone who is generally considered to be vulnerable. For example, a heterosexual man who is verbally abused leaving a gay bar may well perceive that the abuse is motivated by hostility based on sexual orientation, although he himself is not gay. Anyone can be the victim of a hate incident or crime, including people working inside the police service.”
“Some people, particularly celebrities and political figures, have been subjected to malicious complaints from hostile individuals, often with a grudge against the person, their politics or their lifestyle. This, on occasions, can even be part of a stalking process. Sometimes these complainants will allege that the activity was based on hostility towards them because of their protected characteristics. Police officers should not exacerbate the harm caused to a genuine victim when dealing with such incidents. It is also important not to falsely accuse an innocent person and harm their reputation, particularly where the allegation is made against a public figure. In order not to harm an innocent party, the matter should be dealt with as swiftly and sensitively as is possible. In such circumstances investigating officers should seek support from senior colleagues and the CPS hate crime coordinator.”
“… 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.”
“6.3 Recording non-crime hate incidents Where any person, including police personnel, reports a hate incident which would not be the primary responsibility of another agency, it must be recorded regardless of whether or not they are the victim, and irrespective of whether there is any evidence to identify the hate element. The mechanism for local recording of non-crime hate incidents varies. Many forces record them on their crime recording system for ease of collection but assign them a code to separate them out from recordable crimes. Whichever system is used to record hate incidents, managers should have confidence that responses are appropriate and that crimes are not being recorded incorrectly as non-crime incidents. Records must be factually accurate and easy to understand. At an early stage any risks to the victim, their family or the community as a whole must be assessed and identified. The number of non-crime hate incidents is not collated or published nationally, but forces should be able to analyse this locally and be in a position to share the data with partners and communities. Police officers may identify a hate incident, even when the victim or others do not. Where this occurs, the incident should be recorded in the appropriate manner. Victims may be reluctant to reveal that they think they are being targeted because of their ethnicity, religion or other protected characteristic (especially in the case of someone from the LGBT community) or they may not be aware that they are a victim of a hate incident, even though this is clear to others.”
“The recording of, and response to, non-crime hate incidents does not have universal support in society. Some people use this as evidence to accuse the police of becoming ‘the thought police’, trying to control what citizens think or believe, rather than what they do. While the police reject this view, it is important that officers do not overreact to non-crime incidents. To do so would leave the police service vulnerable to civil legal action or criticism in the media and this could undermine community confidence in policing. The circumstances of any incident dictate the correct response, but it must be compatible withsection 6(1) of the Human Rights Act 1998 . The Act states that it is unlawful for a public authority to act in a way which is incompatible with a right conferred by the European Convention on Human Rights. Some of these rights are absolute and can never be interfered with by the state, eg, the freedom from torture, inhuman or degrading treatment or punishment. Some, such as the right to liberty, are classed as limited rights and can be restricted in specific and finite circumstances. Others, such as the right to respect for private and family life, the right to manifest one’s religion or beliefs, freedom of expression, and freedom of assembly and association are qualified and require a balance to be struck between the rights of the individual and those of the wider community. Qualified rights are usually set out in two parts, the first part sets out the right or freedom, and the second part sets out the circumstances under which the right can be restricted. Generally, interference with a qualified right is not permitted unless it is: • prescribed by or in accordance with the law • necessary in a democratic society • in pursuit of one or more legitimate aims specified in the relevant Article • proportionate.”
“… [T]olerance and respect for the equal dignity of all human beings constitute the foundations of a democratic, pluralistic society. That being so, as a matter of principle it may be considered necessary in certain democratic societies to sanction or even prevent all forms of expression which spread, incite, promote or justify hatred based on intolerance …, provided that any ‘formalities’, ‘conditions’, ‘restrictions’ or ‘penalties’ imposed are proportionate to the legitimate aim pursued.”
“The police are responsible for collecting data on hate crimes and many hate incidents. Accurate data for hate crime is difficult to maintain as any hate crime fits into another crime category as well. This ‘secondary’ recording has led to inconsistency and contributed to the under-recording of hate crime, making the challenge of reducing under-reporting from victims more difficult. All criminal justice system (CJS) agencies share the common definition of monitored hate crime. A widespread understanding of this definition and compliance with crime recording rules helps to provide an accurate picture of the extent of hate crime and to deliver an intelligence-led response.”
“The recording of a hate incident is primarily for administrative and intelligence purposes. The information is used to provide statistical data to the Home Office and other relevant agencies to ensure consistency and accuracy in terms of data relating to reporting of such incidents. The information is also relevant for intelligence purposes should matters escalate and information be required in any future investigation. The recording is not a sanction against the individual subject of the complaint and does not restrict the individuals from expressing themselves further.”
“[I]t is part of the obligations and duties of a police constable to take all steps which appear to him necessary for keeping the peace, for preventing crime or for protecting property from criminal damage. There is no exhaustive definition of the powers and obligations of the police, but they are at least those, and they would further include the duty to detect crime and to bring an offender to justice.”
“At common law the police have the power to obtain and store information for policing purposes, ie, broadly speaking for the maintenance of public order and the prevention and detection of crime. These powers do not authorise intrusive methods of obtaining information, such as entry onto private property or acts (other than arrest under common law powers) which would constitute an assault. But they were amply sufficient to authorise the obtaining and storage of the kind of public information in question on these appeals.”
“Parliamentary sovereignty means that Parliament can, if it chooses, legislate contrary to fundamental principles of human rights.The Human Rights Act 1998 will not detract from this power. The constraints upon its exercise by Parliament are ultimately political, not legal. But the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost. Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In this way the courts of the United Kingdom, though acknowledging the sovereignty of Parliament, apply principles of constitutionality little different from those which exist in countries where the power of the legislature is expressly limited by a constitutional document.”
“53. In making a decision whether to support or oppose the designation of an individual by the sanctions committee, the Foreign Secretary is not exercising a power derived from an Act of Parliament. He is acting on behalf of the Government in its capacity as a member of an international body, the Security Council. 54. Consequently, we are not in an area where the ‘principle of legality’ explained in such cases as R v Secretary of State for the Home Department, Ex p Pierson[1998] AC 539 , 573–575 (per Lord Browne-Wilkinson) and 587–590 (per Lord Steyn) and R v Secretary of State for the Home Department, Ex p Simms[2000] 2 AC 115 , 131, per Lord Hoffmann, is apposite. That principle applies in cases where a court is asked to construe legislation in a way which may be contrary to human rights embedded in the common law.” 55. … there is sometimes a tendency on the part of lawyers (as there has been in this case) to seek to use the ‘principle of legality’ as a developmental tool providing an additional ground of challenge in a case purely involving questions of common law, ie, not a case where the defendant is seeking to justify his action by reference to a statutory power. That is to misunderstand it. The ‘principle of legality’ is a principle of statutory interpretation, derived from the common law.”
“The principle of legality is an important tool of statutory interpretation. But it is no more than that.”
“… the principle of legality is a principle of statutory interpretation. In the absence of express language or necessary implication to the contrary, general words in legislation must be construed compatibly with fundamental human rights because Parliament cannot be taken to have intended by using general words to override such rights.”
“We respectfully agree with that analysis. Here, the Home Secretary exercised a prerogative, not a statutory, power and, in our judgment, the principle of legality has no application.”
“An administrative warning is a penalty under Article 30 and it can be used to replace a harsher penalty the Code prescribes for a particular offence; the administrative warning is also intended to serve as a preventive measure, in the same way as a suspended sentence in criminal law”
“16 It is well established that ‘law’ in the Human Rights Convention has an extended meaning. In two judgments delivered on the same day, Huvig v France(1990) 12 EHRR 528 , para 26 and Kruslin v France 12 EHRR 547, para 27, the European Court of Human Rights set out what has become the classic definition of law in this context Huvig, para 26: ‘The expression ‘in accordance with the law’, within the meaning of article 8.2, requires firstly that the impugned measure should have some basis in domestic law; it also refers to the quality of the law in question, requiring that it should be accessible to the person concerned, who must moreover be able to foresee its consequences for him, and compatible with the rule of law.’ Huvig v France and Kruslin v France established a dual test of accessibility and foreseeability for any measure which is required to have the quality of law. That test has continued to be cited by the Strasbourg court as the authoritative statement of the meaning of “law” in very many subsequent cases: see, for example, most recently, Catt v United Kingdom CE:ECHR: 2019:0124JUD004351415. 17 The accessibility test speaks for itself. For a measure to have the quality of law, it must be possible to discover, if necessary with the aid of professional advice, what its provisions are. In other words, it must be published and comprehensible. The requirement of foreseeability, so far as it adds to the requirement of accessibility, is essentially concerned with the principle summed up in the adage of the American founding father John Adams, “a government of laws and not of men”
“… implies qualitative requirements, including those of accessibility and foreseeability. Accessibility means that an individual must know from the wording of the relevant provision and, if need be, with the assistance of the court’s interpretation of it what acts and omissions will make him criminally liable: see also Gülmez v Turkey (Application No 16330/02) (unreported) given20 May 2008 , para 49. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary: Goodwin v United Kingdom(1996) 22 EHRR 123 , para 31; Sorvisto v Finland, para 112.”
“A non-crime hate incident is defined as: any non-crime incident which is perceived by the victim, or any other person, to be motivated any non-crime incident which is perceived by the victim, or any other person, to be motivated 199. If the hostility or prejudice is directed at one of the five monitored strands … it should be recorded as a hate incident.”
“As with hate crime, there is no onus on the complainant to be able to ‘prove’ the hostility for a non-crime incident to be recorded. As noted above, the Macpherson Report specifically recommended that racist non-crime incidents should be recorded, and that the definition of a racist incident should be perception-based. Accordingly the HCOG has applied the same approach to the process of response to all hate crimes and non-crime hate incidents. It applies this for the purposes of assessing whether such hostilities are present, and for assessing levels of risk of escalation.”
“For recording purposes, the perception of the victim, or any other person … is the defining factor in determining whether an incident is a hate incident, or in recognising the hostility element of a hate crime. The victim does not have to justify or provide evidence of their belief, and police officers or staff should not directly challenge this perception. Evidence of the hostility is not required for an incident or crime to be recorded as a hate crime or hate incident.”
“Jon reports circumstances which amount to an offence undersection 4 of the Public Order Act 1986 . He was sworn at and threatened that he would be punched in the face by an attacker who moved toward him in an aggressive manner. Nothing was said about his sexual orientation but he perceives that he was targeted as he is openly gay and there was no other reason why he was chosen. He reports this to the police who should correctly record this as a hate crime based on sexual orientation.”
“76. Although the HCOG provides that genuine non-crime hate incidents must be recorded as such, it does not follow that recording is mandatory in all circumstances irrespective of the context. In particular, para 1.2.4 of the HCOG (p6) provides that: ‘It would not be appropriate to record a crime or incident as a hate crime or hate incident if it was based on the perception of a person or group who had no knowledge of the victim, crime or the area, and who may be responding to media or internet stories or who are reporting for a political or similar motive.’ 77. We recognise that some complaints may be fuelled by political or even malicious motives, so this advice is provided to help reduce the potential for abuse of police recording and response. The HCOG leaves this to the discretion of individual forces, as it is not possible to predict all of the circumstances police may be called upon to address. 78. The full circumstances of the report and the parties involved need to be considered, and this will inform the appropriate response. Such response could include for example recording the allegation but taking no further action, other than to inform the complainant and to monitor for other indications of tensions. Even where a police officer take no action, he or she may be called upon to explain or justify the decision not to act. Therefore, it is important that the police maintain a record of the complaint and the rationale for the response. Being able to measure such complaints also allows the police to assess whether community tensions are increasing in severity or nature.” increasing in severity or nature.”
““Necessary” has been strongly interpreted: it is not synonymous with ‘indispensable’, neither has it the flexibility of such expressions as ‘admissible’, ’ordinary’, ‘useful’, ‘reasonable’ or ‘desirable’: Handyside v United Kingdom(1976) 1 EHRR 737 , 754, para 48. One must consider whether the interference complained of corresponded to a pressing social need, whether it was proportionate to the legitimate aim pursued and whether the reasons given by the national authority to justify it are relevant and sufficient under article 10(2): The Sunday Times v United Kingdom(1979) 2 EHRR 245 , 277–278, para 62.”
“I am content to accept that as a matter of law a policy which cannot be operated lawfully cannot itself be lawful; further, it seems to me that there is clear and binding authority for the proposition that a policy which is in principle capable of being implemented lawfully but which nonetheless gives rise to an unacceptable risk of unlawful decision-making is itself an unlawful policy.”
“(iii) An administrative scheme will be open to a systemic challenge if there is something inherent in the scheme that gives rise to an unacceptable risk of procedural unfairness.”
“I do not think that it is necessary or useful to analyse the various cases referred to. In my view the correct approach in the circumstances of the present case is, straightforwardly, that the policy/guidance contained in paragraph 55.3.9.1 of the EIG and the relevant parts of Assessing Age will be unlawful, if but only if, the way that they are framed creates a real risk of a more than minimal number of children being detained. I should emphasise, however, that the policy should not be held to be unlawful only because there are liable, as in any system which necessarily depends on the exercise of subjective judgment, to be particular "aberrant" decisions – that is, individual mistakes or misjudgments made in the pursuit of a proper policy. The issue is whether the terms of the policy themselves create a risk which could be avoided if they were better formulated.”
“… police and other agencies did not or would not realise the impact of less serious, non-crime incidents upon the minority ethnic communities … The actions or inactions of officers in relation to racist incidents were clearly a more potent factor in damaging public confidence in the Police Service.”
“… recording, measuring and proportionate response is vital to mitigate hate speech and non-crime hate incidents, and this is an important part the State’s effective protection and promotion of human rights. Failure to address non-crime hate incidents is likely to lead to their increase, and ultimately increase the risk of serious violence and societal damage.”
“16. Recording of hate incidents by the police is critical for a number of reasons: • Hate incidents often provide the evidence of motivation for subsequent hate crimes. Specifically where individuals are victims of harassment or stalking where individual acts may be sub-criminal. • Hate incidents can increase levels of fear in communities. Understanding what drives and affects community cohesion is essential for effective policing Recording of hate incidents can prevent escalation into criminal behavior. For example we know through our work in schools that young children are now committing criminal acts online without understanding that their behavior online can lead to criminal convictions.”
“… it is only by a careful examination of the context in which the offending words appear that one can draw a meaningful distinction between shocking and offensive language which is protected by Article 10 and that which forfeits its right to tolerance in a democratic society.”
“4, In my work, among other things I argue that there’s nothing wrong, either theoretically, linguistically, empirically, or politically, with the once-familiar idea that a woman is, definitionally, an adult human female. I also argue that the subjective notion of ‘gender identity’ is illconceived intrinsically, and a fortiori as a potential object of law or policy. In light of these and other views, I am intellectually ‘gender-critical’; that is, critical of the influential societal role of sex-based stereotypes, generally, including the role of stereotypes in informing the dogmatic and, in my view, false assertion that – quite literally – ‘trans women are women’. I am clear throughout my work that trans people are deserving of all human rights and dignity.”
“As also indicative, since I began writing and speaking on gender-critical matters: the Sussex University Student Union Executive has put out a statement about me on their website, accusing me of ‘transphobia’ and ‘hatred’; I’ve had my office door defaced twice with stickers saying that ‘TERFS’ are ‘not welcome here’ …”
“… there are also unfair obstacles to getting gender-critical research articles into academic publications, and in achieving grant funding. These stem from a dogmatic belief, widespread amongst those academics most likely to be asked to referee a project about sex or gender (eg those already established in Gender Studies; those in feminist philosophy) that trans women are literally women, that trans men are literally men, and that any dissent on this point must automatically be transphobic …”
“10. The proposed reforms to the Gender Recognition Act involve removing the gender recognition procedures described above and replacing them with a simple selfidentification process (self-ID). Self-ID means the transitioner does not have to undergo medical or other assessment procedures. 11. Many in the UK are concerned that the proposed reforms for self-ID will erase ‘sex’ as protected characteristic in theEquality Act 2010 by conflating ‘sex’ and ‘gender’. There are concerns that single sex spaces with important protective functions (women’s prisons or women’s refuse shelters for victims of domestic violence or rape) will be undermined. The UK government has said it does not plan to amend the existing protections in the Equality Act; however, this is not convincing to those who see self-ID in any form as fundamentally incompatible with legal protection for women and girls.” incompatible with legal protection for women and girls.”
“27. Index is concerned by the apparent growing number of cases in which police are contacting individuals about online speech that is not illegal and sometimes asking for posts to be removed. This is creating confusion among the wider population about what is and is not legal speech, and - more significantly – further suppressing debate on an issue of public interest, given that the government invited comment on this issue as part of its review of the Gender Recognition Act. 28. The confusion of the public (and police) around what is, and what is not, illegal speech may be responsible for artificially inflating statistics on transgender hate crime … Police actions against those espousing lawful, gender critical views – including the recording of such views where reported as ‘hate incidents’ – create a hostile environment in which gender critical voices are silenced. This is at a time when the country is debating the limits and meaning of ‘gender’ as a legal category. 29. It has been reported that the hostile environment in which this debate is being conducted is preventing even members of parliament from expressing their opinions openly. The journalist James Kirkup said in a 2018 report for The Spectator: “I know MPs, in more than one party, who privately say they will not talk about this issue in public for fear of the responses that are likely to follow. The debate is currently conducted in terms that are not conducive to – and sometimes actively hostile to – free expression. As a result, it is very unlikely to lead to good and socially sustainable policy.”
“In contrast to the position under some other Articles of the Convention, the question as to whether there has been an interference with an Article 10 right will usually be straightforward. Interferences with the right to freedom of expression can take a wide variety of forms and the [ECtHR] has, generally, considered that anything which impedes, sanctions, restricts or deters expression constitutes an interference...”
“27. The Government argued that the applicant had not been the subject of any ‘formalities, conditions, restrictions or penalties’ … 29. The Court acknowledges that no sanction was imposed on the applicant – not even the lightest sanction, a mere admonition. Nonetheless, the applicant was censured, that is, he was formally found at fault in that he had breached the applicable professional standards. This could have a negative effect on the applicant, in the sense that he might feel restricted in his choice of factual and legal arguments when defending his clients in future cases. It is therefore reasonable to consider that the applicant was made subject to a ‘formality’ or a ‘restriction’ on his freedom of expression. 44. It is true that no sanction was imposed on the applicant but, even so, the threat of an ex post facto review of his criticism with respect to the manner in which evidence was taken from his client is difficult to reconcile with his duty as an advocate to defend the interests of his clients and could have a “chilling effect” on the practice of his profession …”
“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 …”
“… contain no pejorative, expressive, mocking, or disapproving elements. In the mouths of many people, these utterances are intended to convey, and be heard as simple descriptions of observable facts; that is they are intended to be fact-stating and non-evaluative utterances, along the lines of ‘water boils and 100 degrees’ or ‘pillar boxes in the UK are red. 6. For many English speakers, ‘woman’ is strictly synonymous with ‘biologically female and ‘man’ with ‘biologically male’. For these speakers, therefore, given the accompanying true belief that trans women are biologically male, to say that ‘trans women are men’ and ‘trans women aren’t women’ is simply to neutrally state facts’”
“Any person who sends to another person - (a) a letter, electronic communication or article of any description which conveys - (i) a message which is indecent or grossly offensive … is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should … cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.”
“6. Freedom of political speech is a freedom of the very highest importance in any country which lays claim to being a democracy. Restrictions on this freedom need to be examined rigorously by all concerned, not least the courts. The courts, as independent and impartial bodies, are charged with a vital supervisory role.”
“In the Court’s view, a legal system which applies restrictions on human rights in order to satisfy the dictates of public feeling – real or imaginary – cannot be regarded as meeting the pressing social needs recognised in a democratic society, since that society must remain reasonable in its judgement. To hold otherwise would mean that freedom of speech and opinion is subjected to the heckler’s veto.”
“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.”