Huge Victory For Free Speech

In my Spectator column this week I’ve written about a significant free speech victory that has gone largely unremarked in the mainstream media: the publication of a new draft Code of Practice about ‘non-crime hate incidents’ by the Home Secretary. It begins:

On Monday, Suella Braverman published draft guidance designed to rein in the police habit of recording a ‘non-crime hate incident’ (NCHI) against a person’s name whenever someone accuses them of doing something politically incorrect. You may think I’m exaggerating, but in 2017 an NCHI was recorded against Amber Rudd, then the home secretary, after an Oxford professor complained about her references to ‘migrant workers’ in a Tory party conference speech. NCHIs can show up on an enhanced criminal record check even though, by definition, the person hasn’t committed a crime.

The concept first surfaced in guidance published by the College of Policing in 2014 and within five years 119,934 non-crime hate incidents had been recorded by 34 police forces in England and Wales, according to FoI requests submitted by the Telegraph. Nine police forces didn’t respond, but if we assume they were logging NCHIs on the same scale, it’s likely that more than a quarter of a million have been recorded to date. Little wonder the police won’t send anyone round to your house if you report a burglary. They’re too busy investigating people accused of wrongthink.

So this new guidance – in reality, a statutory code of practice that requires the approval of both houses of parliament – is long overdue. Free-speech campaigners like me have been lobbying Conservative home secretaries about NCHIs for years, not least because they’re used as a weapon by political activists and religious zealots to silence their critics. A carefully worded complaint accusing your antagonist of being motivated by ‘hostility’ towards you on the basis of a ‘protected’ characteristic, e.g. your race, religion or sexual orientation, will result in a summons to the local police station. But Suella, God bless her, is the first one to sit up and listen. She recognises that meting out this punishment to anyone who challenges woke dogma is having a chilling effect. “We need a common sense approach that better protects freedom of speech,” she wrote in the Times.

The Free Speech Union has been working hard on this behind the scenes and we’re delighted by the new guidance. Elsewhere, on the FSU’s website, I’ve singled out others who deserve praise for this victory.

First, the ex-copper Harry Miller, who had an NCHI recorded against his name in 2019 when a trans activist complained about him tweeting a comic verse about transwomen. Harry took Humberside Police and the College of Policing to court – first to the High Court, then to the Court of Appeal, backed by the Free Speech Union – and his courageous battle against this unlawful interference in his free speech has helped to win this victory. (You can watch Harry Miller being interviewed by our General Secretary at a Speakeasy here.)

Second, the Conservative peer Lord Moylan. We worked closely with him – as well as Lord Pannick, Lord Sandhurst and Lord Macdonald of River Glaven – to secure an amendment to the Police, Crime, Sentencing and Courts Act 2022 which gave the Home Secretary the option of bringing forward a Statutory Instrument containing a Code of Practice putting the recording and retention of NCHIs on a statutory footing. That is the option that Suella Braverman is availing herself of – without that amendment, she wouldn’t be able to issue this new guidance.

But this win is no reason for complacency, as I point out in my Spectator column:

Harry Miller is worried some woke police officers will try to get round the new Code of Practice by treating politically incorrect remarks as actual crimes, rather than NCHIs, and petitioning the CPS to prosecute.

That’s not all that fanciful. Last week, I was due to appear as an expert witness for a Christian street preacher called David McConnell who was appealing a conviction for causing harassment, alarm or distress. His crime? ‘Misgendering’ a trans woman. A judge at Leeds Crown Court overturned the conviction without needing to hear my evidence, but we can expect more such prosecutions in future once the use of NCHIs to shut people up has been curtailed. The Home Secretary should be congratulated for striking a blow in defence of free speech this week, but there’s more work to be done.

Worth reading in full.