The “right to be offended” does not exist, a judge has said, as the High Court hears that British police forces are recording hate incidents even if there is no evidence that they took place.
Mr Justice Knowles made the remark on the first day of a landmark legal challenge against guidelines issued to police forces across the country on how to record “non-crime hate incidents”.
The College of Policing, the professional body which delivers training for all officers in England and Wales, issued their Hate Crime Operational Guidance (HCOG) in 2014, which states that a comment reported as hateful by a victim must be recorded “irrespective of whether there is any evidence to identify the hate element”.
Mr Justice Knowles expressed surprise at the rule, asking the court: “That doesn’t make sense to me. How can it be a hate incident if there is no evidence of the hate element?”
He added: “We live in a pluralistic society where none of us have a right to be offended by something that they hear.
“Freedom of expression laws are not there to protect statements such as ‘kittens are cute’ – but they are there to protect unpleasant things.
“Its utility lies in exposing people to things that they do not want to hear.”
The case against the College is being brought by Harry Miller, a 53-year-old man from Lincoln, who claims that the HCOG is unlawful because it infringes on his right to freedom of expression.
Mr Miller, a married father of four, was investigated by Humberside Police earlier this year after a Twitter user complained that he shared a “transphobic limerick”. Even though no crime was committed, his sharing of the limerick online was recorded as a “hate incident” and he was described as a “suspect” in police reports, the court heard.
Mr Miller, who was previously an officer for the Humberside force, accused the police of “creating a chilling atmosphere for those who would express a gender critical position”.
“The idea that a law-abiding citizen can have their name recorded against a hate incident on a crime report when there was neither hate nor crime undermines principles of justice, free expression, democracy and common sense,” he said.
A judicial review into the HCOG began yesterday (Weds), in which Mr Justice Knowles is set to rule on whether the rules are unlawful.
In legal documents lodged before the High Court, lawyers representing the College argued that the guidelines are necessary to resolve social tensions that could escalate into crimes.
“The role of British police today goes beyond bringing offenders to justice when they commit crimes,” the College argued in written submissions, adding that “police now take an active role in the resolution of conflict within and between communities.”
Their defence comes amid rising knife crime violence across the country, with offences reaching an all time high in 2019. According to the ONS, the number of offences involving a knife or sharp instrument increased from 41,000 in June 2018 to just over 44,000 in the following 12 months.
Ian Wise QC, acting on behalf of Mr Miller, argued that the presumption of a victim telling the truth in the College’s guidelines echoes the mistakes made by the Metropolitan Police during Operation Midland, when £2.5m of tax-payer money was spent investigating the false claims made by fantasist Carl Beech.
“The Beech inquiry revealed a similar error that is apparent in the operation of this policy and the actions of the police by believing the so-called victim’s account,” Mr Wise told the court.