5 Essex Court


17 Feb 20 Back to Listing

Alex Ustych appears in landmark Judicial Review on freedom of speech on social media

Alex, acting for the Chief Constable of Humberside, appeared in R (on the application of Harry Miller) v (1) College of Policing; (2) Chief Constable of Humberside [2020] EWHC 225 (Admin). Mr Miller (through Ian Wise QC) challenged the lawfulness of the Hate Crime Operational Guidance, published by the College of Policing, which required police forces to record as ‘non-crime hate incidents’ incidents that were “perceived, by the victim or by any other person, to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender.” Mr Miller also claimed that Humberside Police’s actions in recording his ‘gender-critical’ tweets, about which a transgender person had complained to the police, as a ‘non-crime hate incident’, and the Police’s actions in advising him against any ‘escalation’, interfered with his rights to freedom of expression under Article 10 ECHR and the common law.

The Administrative Court (Julian Knowles J) held that the Guidance was lawful, as was the mere recording of Mr Miller’s tweets as a ‘non-crime hate incident’. However, the Court also held that the police officer who visited Mr Miller at his place of work in order to discuss the matter, and who then spoke with Mr Miller over the telephone, had left Mr Miller with the impression that he might be prosecuted if he continued to tweet about transgender issues. A press statement and a response to a complaint by the police also referred to the possibility of criminal proceedings if matters ‘escalated’, without further defining ‘escalation’. The Court concluded that the Police’s actions in advising Mr Miller about his tweeting were disproportionate and unlawfully interfered with his Article 10 rights to freedom of expression.

The Claimant has been granted a certificate for a ‘leapfrog’ appeal direct to the Supreme Court, against the finding that the recording of ‘non-crime hate incidents’ pursuant to the College of Policing’s Guidance was lawful, on the basis that this is a point of law of general public importance. If the Supreme Court declines to hear the appeal, then the Claimant has been granted permission to appeal to the Court of Appeal.

The judgment can be found here.