We recently had what should have been the subject of an enormous row in Parliament, the Harry Miller case where Harry Miller was visited and threatened with caution over tweets that officers said were transphobic. Just as there are now police officers threatening people under the covid19 emergency powers in manners that amount to a breach of Human Rights. The problem stems from ill-conceived and poorly debated laws just like the Corona Virus Act 2020. If it wasn’t for Corona panic by the Government and if there was an effective opposition to the Government, then the Miller Judgment at the end of February 2020 would still be reverberating around Parliament, Unfortunately, just like the Corona Virus Act 2020, there was an abdication of parliamentary responsibility to debate these critical matters, just as there has been an abdication of the oppositions duty to question the decision for lockdown.
So firstly what happenned in Miller? Harry Miller is an ex-police officer and was not going to be threatened by police officers that he saw as being OTT. This arose from the ridiculous wording of hate crimes where the subjective nature of the crime appears to be interpreted as whether the victim, however deluded, considers this as a hate crime. The result was that respected High Court Judge Mr Justice Julian Knowles was asked to review the actions of the Humberside Police, but suffice it to say that Mr Justice Knowles was less than impressed with the Humberside police when he gave his judgment on 14th February 2020. He opened by reflecting that “In his unpublished introduction to Animal Farm (1945) George Orwell wrote:
“If liberty means anything at all, it means the right to tell people what they do not want to hear.”” and went on to review the law about Freedom of Speech and Human Rights and the genuine concerns of transgender matters that (para 14) On one side of the debate there are those who are concerned that such an approach will carry risks for women because, for instance, it might make it easier for trans women (ie, those born biologically male but who identify as female) to use single-sex spaces such as women’s prisons, women’s changing rooms and women’s refuges. On the other side, there are those who consider it of paramount importance for trans individuals to be able more easily to obtain formal legal recognition of the gender with which they identify.”
Mrs B (a transgender person, being post-operatively female) reported Harry Miller’s tweets as transphobic and the hate Crime Operational guidance unit of Humberside Police recorded these as non-crime hate incidents and Mr Miller was police went to Mr Miller’s place of work to interview him and as he was not there, spoke to him on the phone. Mr Miller quite correctly complained about his treatment by the police and the interference with his Article 10 Human Rights of free expression over transgender issues and sought judicial review. Mr Miller’s complainant Mrs B didn’t even read the tweets herself, but they were brought to her attention by someone else. They had never met.The judge concluded that Mrs B voluntarily chose to read the tweets and that they were not directed at her.
Humberside Police characterised Mr Miller’s tweets as hate crime “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.
The judge found that what Mrs B told the police was not accurate. The judge found that PC Gul did not assess whether Mrs B was properly a victim and failed to consider the proper guidelines. PC Gul decided to speak to Mr Miller without consideration of what offences he had in mind or why PC Gul thought there was a risk that matters might escalate to become a crime. PC Gul in interviewing Mr Miller stated that his tweets were “were upsetting many members of the transgender community who were upset enough to report them to the police” – The Judge found this to be untrue. Mr Miller (remember that he is an ex-police officer with years of experience of accurately recording interviews) stated that PC Gul told him that he had been contacted by a person from ‘down south’. He called the tweets ‘transphobic’ and referred to ‘the victim’. He says PC Gul said that the ‘victim’ had called to express concern for employees at the Claimant’s place of work and was concerned it was dangerous for trans people. PC Gul explained that the Claimant had not committed a crime, but that his tweets had been ‘upsetting to many members of the transgender community’. Mr Miller asked PC Gul why he was wasting his time on matters that were not crimes and said “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 answering: ‘Yes’ and Miller replying ‘Have you any idea what that makes you ? ‘Nineteen Eighty-Four’ is a dystopian novel, not a police training manual.’” (This referring to Nineteen Eighty Four novel by George Orwell and the creation of thoughtcrime. Mr Miller described PC Gul’s attitude as wrong, coercive and oppressive, something that Mr Justice Knowles agreed with. The result of the Humberside police intervention was that Mr Miller and his family have been the subject of threats and intimidation. The Judge concluded that the police improperly left Mr Miller with the clear belief that he was being warned to desist from further transgender postings.
A recording of a non-crime hate incident could disclose the maker of the statement or author of the incident in an Enhanced Criminal Record Check and in the words of Mr Justice Knowles (a) the mere recording of a non-crime hate incident based on an individual’s speech is not an interference with his or her rights under Article 10(1); (b) but if it is, it is prescribed by law and done for two of the legitimate aims in Article 10(2); and (c) that HCOG does not give rise to an unacceptable risk of a violation of Article 10(1) on the grounds of disproportionality.
Mr Justice Knowles then went onto say that Mr Miller was contributing to an ongoing debate that is complex and multi-faceted and referred to a number of very respected academics stating that there is a vigorous ongoing debate where people with the opinion encompassed by the phrase “it is a false assertion that trans women are women” are vilified as transphobic and that there is an academic belief that those with different views to the pro-trans community are expressing hatred, bigotry, prejudice or hostility when they are not doing this, but sumply putting forwards legitimately different value judgments.
Mr Justice Knowles concluded that the Police interfered with Article 10 rights of freedom of expression going on to say “In my judgment…… 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. “
Mr Justice Knowles in his judgement quoted Professor Stocks statement that saying “Trans Women aren’t Women” is not 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. 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’”.
Mr Justice Knowles in his judgement also considered the s127 grossly offensive or indecent, obscene or menacing character offence under the Communications Act 2003 and stated that the Miller tweets were nowhere near that offence (and indicated that the Professor Stock quote would not be either. “No reasonable person could have regarded them as grossly offensive, and certainly not having regard to the context in which they were sent, namely, as part of a debate on a matter of current controversy. Nor could they be reasonably regarded as indecent or menacing.”
There is little scope under Article 10(2) of the Convention for restrictions on political speech or on the debate of questions of public interest. 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. (The same applies to the protection of liberty and freedom in relation to Corona Powers). In the Miller case, Mr Justice Knowles found no justifcatiion for restriction of free speech and there are going to be similar criticisms of the powers under Corona Act.
Mr Justice Knowles also said “I hesitate to be overly critical of Mrs B, given she has not given evidence, but I consider it fair to say that her reaction to the Claimant’s tweets was, at times, at the outer margins of rationality….”
Finally Mr Justice Knowles concluded “Although I do not need to decide the point, I entertain considerable doubt whether the Claimant’s tweets were properly recordable under HCOG at all. It seems to me to be arguable that the tweets (or at least some of them) did not disclose hostility or prejudice to the transgender community and so did not come within the definition of a non-crime hate incident……I conclude that Mrs B’s upset did not justify the police’s actions towards the Claimant including turning up at his workplace and then warning him about criminal prosecution, thereby interfering with his Article 10(1) rights……and in answer to the second question, whether the measure was rationally connected to the objective, flows from the first question. It was not. It was not rational or necessary to warn the Claimant for the reasons that I have given. “
As many watched the Prime Minister order what was in effect something very close to mass house arrest on Monday 23rd March, they will have felt revulsion, anger and grief – as anyone brought up when this was a free and well-governed country would do so. They will have watched in horror as the police have exhibited an SS, Stasi or Cheka-like attitude again – as they are criticised for
Telling MP Stephen Kinnock that visiting his father, former Labour leader Neil Kinnock, on his birthday was not essential travel,
Telling shoppers that going to a convenience store to buy Easter Eggs to celebrate Easter with young children was not essential travel.
In a democratic society, the definition of essential travel is a subjective matter for the driver, not an objective one, unless laid down expressly by Parliament, and if there is doubt about the subjective test, then it will be for the magistrates to determine in due course. The test is similar to the emergency test for using the hard shoulder and Alex Ferguson used the ’emergency” defence when caught driving on the hard shoulder to avoid a traffic jam when it was an emergency to get to the toiler.
(The story about the police stopping a driver who was “bored and out for a drive” is a myth. The Police rightly stopped this driver who turned out to be just 15 years old and had no driving licence – so even though his excuse was he was “bored and out for a drive” he was committing numerous traffic offences.).
Many of the so-called offences stem from a few clauses in the Public Health (Control of Disease) Act 1984, which most barristers had not even heard of. prior to the Corona epidemic and this has draconian powers buried in it which the MPs at the time never actually expected to have to use and not in the way that it is currently being used. Section 45 C (3) (c) of the Public Health (Control of Disease) Act 1984 has Orwellian powers because once the Health Secretary believes there is a threat to public health, he has – or claims to have – limitless powers to do what he likes, ‘imposing or enabling the imposition of restrictions or requirements on or in relation to persons, things or premises in the event of, or in response to, a threat to public health’, but beware any police officer relying on that power, because just like PC Gul, you may not actually have the power to legally do what you’re doing or your use of the power may breach Human Rights as highlighted by no lesser legal specialist than Supreme Court Judge Lord Sumption who doubts that the Act can be used in this way and warns: ‘There is a difference between law and official instructions. It is the difference between a democracy and a police state. Liberty and the rule of law are surely worth something, even in the face of a pandemic.’……but where is the debate …where is the opposition when it is needed, it has slunk away into hiding, terrified that if it criticises Government it might be open to criticism – more worried about it’s pending leadership battle than about civil liberties.
Despite criticism of the police from the Harry Miller case, have Humberside police decided to protect their reputation? No, they’ve decided to bolster their stasi-like attitude, creating an online portal for reporting people not social distancing. Northamptonshire police reported that ‘We are getting calls from people who say, “I think my neighbour is going out on a second run – I want you to come and arrest them”, so great is the paranoia created and so eager are many of the population to willingly adopt the (fortunately fictitious) concept of a legal duty to report wrongdoers that characterised 1984’s Oceania. What is so wrong with driving to somewhere deserted for a break with your immediate family? You’re is a car where you’re not contaminating anyone else, you’re walking as a family group in the open air, hundreds of feet from the nearest other group….but you must be committing an offence. What is wrong with being 20 and sitting in a park with your girlfriend as long as you’re social distancing? Who is crying out “FOUL!” when the Stasi, sorry the Police, come and tell you to move on or be fined. Where are your civil liberties?
Has Professor Neil Ferguson was one of those largely responsible for the original panic been subject to parliamentary questions? The doctor behind a U.K. college study that painted a chilling scenario over the coronavirus pandemic now says he holds a more optimistic view about the spread in the U.K.
Renowned epidemiologist Neil Ferguson of the Imperial College suggested in his model last week the U.S. and the U.K. would have to continue to shut down for as many as 18 months to avoid catastrophic death, and originally predicted 500,000 deaths in the UK but then testified in front of the U.K’s Parliamentary select committee on science and technology in March that he expects the country to be able to flatten the curve within 2-3 weeks and that he expected the death toll in Britain to be under 20,000. Other from Imperial college who are not epidemiologists revised that doomsday prophecy to 5,700, but now have admitted that they underestimated the numbers and that the 20,000 is likely to be more accurate, but what of the 500,000 deaths prediction ? Has he been held to account about creating panic? Millions of toilet rolls piled in households suggest that he hasn’t, nor will he or the Ministers who blindly ignored the critics of that maths be brought to account. Less likely still will Kier Starmer and his opposition friends be asked why they didn’t behave like an opposition.
Who has raised questions about the Oxford University alternative figures.? These suggested an entirely different scenario. The Rival view, from distinguished scientists at Oxford University, led by Sunetra Gupta, Professor of theoretical epidemiology suggests less than 1 in 1000 infected with Covid-19 will become ill enough to need hospital treatment, and most of those will be over 75. Yet we’re ruining the economy based on the Ferguson induced paranoia. And where are the figures saying that deaths today for corona and influenza are 145, compared with a typical seasonal death rate for influenza of 95, trying to put a balance on the figures and the fear.
It is fascinating, looking at how different countries which have adopted different methods of dealing with the virus and to see how little pattern there is within the experts globally. As Peter Hitchins has been highlighting for weeks, even Hong Kong and Singapore, similar city states which had a similar outcome, adopted different policies.
If the Government do finally release us from mass arrest, then we should not blindly praise them for wrecking the economy but saving lives, we should hold their feet firmly to the fire of post-corona scrutiny, demanding proof and an independent enquiry into why the NHS was so woefully under-resourced that there is no longer spare capacity to deal with a crisis, why there was no pre-planning for a pandemic meaning that NHS workers had to work without adequate PPE, why lockdown was favoured over the alternative of saying “If you’re vulnerable or live with the vulnerable, stay at home, we’ll help you out, but if you’re under 40 and healthy, keep working, you’ll mostly have a mild illness and then build up herd immunity.?Why did it take so long for the Government to order PPE into place when in early January it was clear that there was a pandemic coming from China? Did China cover it up and if so what sanctions need to be taken against the People’s Republic….and most importantly, what lessons do we need to learn ahead of the next pandemic which could have a kill rate, not of 1% to 3% (depending on who you believe) but 50%.
We should not be grateful to be let out of lockdown. We should be very very angry that we were locked down in the first place. if this could have been avoided.