"In this country we have never had a Cheka, a Gestapo or a Stasi. We have never lived in an Orwellian society”
Women are now being harassed in their homes by an ideological police force. Dennis Kavanagh looks at the legal side of the recent incident
Mr Justice Knowles giving judgment in the case of Miller v College of Policing memorably dealt with the submission that a visit from police officers to “check your thinking” was not some trivial matter holding:
“In my judgment these submissions impermissibly minimise what occurred and do not properly reflect the value of free speech in a democracy. 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”
Those words seem particular apt today with the news that a woman was visited, (apparently in her own home), by a police functionary who objected to her displaying a sticker on her own property reading “Trans ideology erases women” and encouraging her to obtain education such that she wouldn’t think or communicate this idea which (apparently) offends against the police’s political position that “Trans women are women”. A recording of the exchange is available on the twitter link below, Glinner has also posted a page containing the audio here which also contains a transcript prepared by a user going by the name “Parrot” which I’m going to repurpose in this piece order to make legal comment.
Others can elegantly make the obvious political points regarding how terrifying this authoritarian Stonewall style of policing is, I’ll confine myself here to a basic legal primer with the hope people can use it if necessary if they find themselves in a similar position.
Basis of police powers
1. The police derive their powers from two sources, the “common law” and Statutes (Acts of Parliament), the main statute governing police interactions of serious consequence is the Police and Criminal Evidence Act of 1984[1] and the Codes of Practice which accompany it. Common law for our purposes can de defined as judge-made law reflecting the customs, common practices and social conventions of England & Wales. Any officer exercising a power (whether common law or statute) must have a lawful basis for it. If they do not they may face an action for damages (such as false imprisonment where an arrest and detention takes place) or a challenge by way of judicial review (such as in Miller where the High Court was asked to decide on the lawfulness of recording “non crime hate incidents” following a visit from a police officer similar to this case).
The likely police power exercised in this case – the common law power to prevent crime
2. As there was apparently no arrest in this case the only thing one is left with (so far as I can see) is the exercise of the common law power of police constables to prevent crime. This was summarised in the first Miller case in this way:
157. A police constable is a creature of the common law. Police constables owe the public a common law duty to prevent and detect crime. That duty reflects a corresponding common law power to take steps in order to prevent and detect crime. As Lord Parker CJ said in Rice v Connolly [1966] 2 QB 414, p419: “[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.”
3. This is a necessarily flexible and adaptable power, circumstances change and the mechanisms by which the police should properly detect and prevent crime can be as novel as the pace of digital change, recent cases have involved challenges to facial recognition software or photographs of demonstrators.
4. What is not novel or a matter to which the police are forced to adapt is visiting people in their homes. That matter is rather better settled and in Miller’s case the High Court decisively found the visit by a Police Officer to “check his thinking” to be a grotesque abuse of power. The police argued that the visit was necessary in order to prevent crime – namely to prevent an escalation of what were fairly mild tweets on the question of gender into an actual criminal offence.
The fundamental need to identify the crime being prevented
5. In Miller, the police were asked what crime they could possibly be preventing, dealing with the exchange with Counsel that followed in caustic terms Mr Justice Knowles ruled:
“He suggested the offence under s 127 of the Communications Act 2003 which, to recap, makes it an offence to send ‘a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’ via a public telecommunications system. He also suggested the offence under s 1 of the Malicious Communications Act 1988. In my judgment the suggestion that there was evidence that Claimant could escalate so as to commit either offence is not remotely tenable.”
6. Having summarised the caselaw on point, the Learned Judge held that the tweeted statements in Miller were fairly common and perfectly lawful examples of freedom of speech, Professor Kathleen Stock provided a witness statement to give context and, to give you a flavour that material included statements such as “Trans women aren’t women” (a position which following Forstater is also a “belief” protected characteristic under the 2010 Equality Act and following Bailey a belief that is protected to the point of robust and trenchant criticism of those espousing extremist gender ideology such as Stonewall.
The statement in this case and recap
7. It’s worth pausing at this point just to note the following:
· The statement in this case is “Trans ideology erases women”, it cannot, in law, amount to the s.127 or s.1 offences above (were it tweeted) because it cannot begin to be described as “grossly offensive”, it is a common point of view (and one in my personal view that happens to be correct to which I would only add it also erases homosexuals).
· As a matter of fact this is a sticker in someone’s home. It therefore is not a communication let alone a malicious one.
· As we shall see below, Human Rights law hold interference with freedom of expression by the police on the basis of prevention of crime must be justified to a high standard.
· At no point is any likely criminal offence justified, instead the women in this case is subject to a barrage of propaganda and belittling by a police functionary pushing Stonewall extremism.
· Escalation is not relied upon by the functionary (nor do I suspect such will be successful if later relied upon as an excuse).
Article 10 – the right to freedom of expression
8. Article 10 of the European Convention on Human Rights reads as follows, I highlight the qualification in 10.2 considered in Miller:
10.1. 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.
102. 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.
9. In order to succeed in an action for damages/judicial review claiming a breach of article 10 the court must consider the following four matters:
i. Was there an “interference” with the right to freedom of expression?
ii. Did the police act in a manner not prescribed by law?
iii. Was the interference necessary in a democratic society?
iv. Was the motivation behind the interference a legitimate aim (like preventing or detecting crime)?
Questions two and four are linked and question three breaks into a further four questions (don’t blame me this is just how law works and I apologise for that and ask you to forgive me but I’m going to deal with them in the order one, two, four then three with it four sub questions (the same way the court did in Miller).
Test i - Was there an interference?
10. The law in this area summarised at 254 onwards in Miller and the basic position is that the police have to do very little to count as an interference, quoting the core text, Clayton & Tomlinson, The Law of Human Rights (2nd Edn, Vol 1) at [15.267]: Mr Justice Knowles sets out:
“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...”
11. Perhaps unsurprisingly, the Court found very little difficulty in the “check your thinking” visit from a police officer clearly qualifying as an “interference”. On the principle that the greater includes the lesser it would seem that the conversation in this case cannot be anything other than a substantial and rather shocking interference given the tone, duration, obvious distress and aggressive political campaigning by a functionary.
Test ii – Did the police act in a manner not prescribed by law?
12. This is the prevention of crime point discussed above, in Miller the Learned Judge was just about prepared, it seems, to believe the officer was acting with the belief he was exercising that power but he makes clear the suggestion that Miller’s lawful free speech could “escalate” into a criminal offences was tenuous and without an evidential basis.
13. In this case no criminal offence is identified at all. A distressed woman in her own home is subject to a rancorous political dressing down. It is very difficult to see how it might be argued that police functionaries behaving in this fashion is prescribed in law when, as the earlier stasi, cheka, gestapo comment makes clear, it is in essence the opposite of our policing arrangements.
Test iv – Was the motivation behind the interference a legitimate aim (like preventing or detecting crime)?
14. In Miller the Learned Judge was just about prepared to accept the “check your thinking” officer genuinely believed he was preventing or detecting crime re Malicious Communication offences albeit he makes clear that belief was hopelessly misguided.
15. This case is different for the reasons explained above. There is no identified offence or communication. There is a political diatribe directed at a distressed woman in her own home.
Test iii - Was the interference necessary in a democratic society?
16. This is the one that splits into it’s own four tests. The test of whether something is necessary comes from a case called Bank Mellat v HM Treasury (No 2) [2014] AC 700, [74] and they are as follows:
(a) whether the objective of the measure (the interference) is sufficiently important to justify the limitation of a protected right;
(b) whether the measure is rationally connected to the objective;
(c) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and
(d) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure
17. Considering those tests one by one:
(a) whether the objective of the measure (the interference) is sufficiently important to justify the limitation of a protected right;
In Miller the Learned Judge found that visiting a man at his place of work to “check his thinking” as follows:
283. Overall, given the importance of not restricting legitimate political debate, 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.
By contrast, given the extraordinary facts in this case and lack of any supposed criminality or threatened prosecution, it is very difficult to imagine how an argument could be sustained that this exchange was proportionate.
(b) whether the measure is rationally connected to the objective;
In Miller the answer to this question flowed from the first, it was found as there was no need to visit Mr. Miller, the visit was not “rational or necessary”. The same must apply here.
(c) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective,
Absent the objective being important or legitimate this question answers itself both here as it did in Miller.
(d) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure
Given the overlap between Miller tweeting on gender issues and the content of the sticker displayed in this woman’s home, it's worth quoting the entirely of the answer in Miller to this question:
286. The fourth question is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. I am quite satisfied that it is. The Claimant’s Article 10(1) right to speak on transgender issues as part of an ongoing debate was extremely important for all of the reasons I have given and because freedom of speech is intrinsically important. There was no risk of him committing an offence and Mrs B’s emotional response did not justify the police acting as they did towards the Claimant. What they did effectively granted her a ‘heckler’s veto’. As to this, in Vajnaj v Hungary, supra, the Court said at [57]:
“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.”
The comparison to the instant case is an obvious one. In entering the house of a woman who becomes plainly distressed at the ideological heckling she is then subject to this police functionary unlawfully and quite deliberately sought to act like a member of the thought police on trans issues. As the above makes clear, there is no basis in our law for the police behaving in this fashion.
Part II - The transcript
My comments in the indent:
TRANSCRIPT.
BELLA DOE: You’re told you’re transphobic if you don’t… If you’re a lesbian and you don’t include trans women.
PCSO: What? Why would you not include trans women?
DNK Comments:
Why is this officer debating the existential status of female homosexuals?
What criminal office is being investigated?
Why is a police functionary espousing a position on who gay people sleep with?
BD: Um. Because they’re men.
PCSO: No they’re not.
DNK Comments:
Think it in your private time officer, don’t afflict brave homosexuals with your own private delusions, also
What criminal office is being investigated?
Why is a police functionary espousing a position on who gay people sleep with?
BD: But they can’t… they can’t change… then you’d have to...
PCSO: Okay, where you are in your thinking is very much needed a lot of enlightenment and reading. I find that very offensive and I’d like you to take it off.
DNK Comments:
Offence taking from a police functionary is not a lawful basis for interference with Article 10 freedom of expression
BD: But why do you find it ...why do you find it offensive?
PCSO: Because you’re...trying to...tell people in the real world…not inside your house...outside...that trans people don’t exist. That it’s an idea, it’s ideology. And that’s it’s being harmful for women, which it isn’t. And it’s not a point of view, that’s fact. So I think that is quite damaging because what you’re actually doing is trying to give other people the idea of what you believe. Which, I think, you need to do a lot more reading on...personally.
DNK Comments:
This is illiterate, the sticker is about an ideology, it in no way suggests trans people don’t exist
Still no criminal offence identified
Naked contentious political statements by officer
And now because somebody’s spoken to you about it you’re going to keep it there because you feel that that’s your right to do so.
BD: No. I don't...I want to…no. But it’s been…it’s faded, it’s been there for so… it’s been there. You’re. This. So now I’m…I have…I cannot ex...
DNK Comments:
People facing uniformed officers in their own home are likely to become distressed, particularly on imagines if said officers volley extremist gender chat at them
PCSO: You can express your views in your own world. This is not inside your world, is it? Anybody that comes to your door is going to see that.
DNK Comments:
Still no criminal offence identified, seems taking offence has replaced actual offences
BD: I don’t… Why… I thought… I said I’d keep myself to myself. This is ridiculous.
PCSO: It’s really upset you?
BD: Yes it has. So…
PCSO: But you don’t think about the fact that...
BD: I do. I think about…
PCSO: It upsets all the trans people to say that they’re erasing women. Which it simply isn’t true.
DNK Comments:
It is not this officer’s place to speak to women in their own homes as if they are children who need educating.
Still no lawful basis for this visit
Visit increasingly has the air of a hectoring/bullying intimidation attempt by an agent of the state pushing extremist gender ideology
BD: But that… doesn’t that… If I go to a support group about rape… if I’ve been raped, right?
PCSO: Yeah.
BD: And I go to the support group.
PCSO: Yeah.
BD: I have to include trans men in that, why?
PCSO: What do you mean you have to include trans men in it?
BD: I mean trans women. Trans women...because...
PCSO: You don’t think trans women get raped? You don't think trans women don't get raped? Trans women get raped too. Trans women are women get raped. Men get raped. Trans men get raped. There’s no differentiation and nor should there be.
DNK Comments:
This is now highly unprofessional and deeply abusive. Not only is this poor policing this functionary is now dealing a sensitive area regarding an offence they are not trained or qualified to discuss, let alone arrest for. Yet another CLEAR example of an obvious opportunity to end this unlawful ideological bullying.
BD: I’m not talking about the sex…those who have had their um… (Silence for a few seconds)
PCSO: It’s difficult if you’ve had an experience that has coloured your gen… your..your..your idea of what’s going on what's going on in life. However, that sort of thing is just preying on your fears, making you scared of something you shouldn't be scared of.
BD: (sobs) I wasn’t scared. I wasn’t scared until I was told that it might cause offense. Now, I feel...
PCSO: No but you’re…no, I’m not on about that. I’m on about the fact that you’re living in fear of trans women.
DNK Comments:
This has now degenerated into what it must be like to be visited by an anime twitter troll idiot, not a servant of the Crown. Disgraceful.
Still no law, offence or legal basis discernible for this interaction
BD: No I’m not. I’m not in fear…I’m not in fear. I just want to be able…I want to be able to…oh..
PCSO: What do you want to be able to do?
BD: I want to be able to go to my support group for my stuff that has happened to me from men without having men there, and then you’re telling me that..
PCSO: Ah, right, yeah, so this is what I'm saying about you've got...you've got in your head that a trans woman is not a woman.
BD: But they’re not how are they a woman (inaudible) what are women?
PCSO: Okay. That’s not my job to educate you, but you need to educate yourself. There’s plenty… If you go on the Internet there’s tons of support groups that will help you with this.
DNK Comments:
Why is this functionary under the impression the police are responsible for the re-education of wrong thinking women and homosexuals?
How has an officer been this obviously badly trained that they cannot see this is a contentious political discussion and a grotesque abuse of their power?
BD: But you’re telling me that I have to change… I have to change my belief.
PCSO: Oh, it’s not beliefs, it’s not beliefs it’s fact. It’s not a belief system, it’s not like “do you believe in God?” you know something you can’t see. It’s not… that’s not..that's not what this is. Again you… you’ve got to try..
DNK Comments:
Lol “trans women are women” is a statement of belief you fool
BD: You can’t change sex. It’s impossible to change sex.
DNK Comments:
By contrast this is what’s known as a “fact”
PCSO: It’s not change. Okay, it’s how you’re born. It’s how you’re born. Now if a person is born in the wrong body and spends big portion of their life in that wrong body and suffers terribly from all sorts of disorders because they have been born into the wrong body...to allow them to transition to the right body to enable them to feel… be the person that they are, isn’t something that doesn’t exist. It isn’t a choice, just the same as being gay isn’t a choice. Do you understand that being gay is not a choice, yeah?
DNK Comments:
Oh please…..
BD: That’s what I’m saying about les, about being lesb..
DNK Comments:
Not even allowed to finish the word. Telling that.
PCSO: Yeah, so being gay is not a choice. Being trans is not a choice. It’s not a choice. It’s not something you just wake up one day & decide to be. It’s not a choice. It causes distress. It causes suicide. It causes people terrible mental health crises & mental ill health for many many years until they find the courage to be the person that they actually are. It’s not that they want to be. It’s not that they wish to be. It’s that they actually are. Does that make sense? (Silence) Does that make sense?
BD: No.
DNK Comments:
Yeah your obvious ill informed guilt trip attempt makes no damned sense at all nor does this visit in law you awful bully
PCSO: It doesn’t make sense. Okay. (inaudible)
DNK Comments:
Thankfully the woman’s daughters enter at this point and she gets some support in the face of this ill informed extremist hectoring in her own house
Please note, we still have no idea what criminal office is being investigated, what power is being exercised or why the police are apparently allowed to go round like the paramilitary wing of Stonewall
DAUGHTER1: Don’t get upset. It’s a sticker, mum. It’s a sticker.
BD: But my…my...I’m offending trans women who are women.
D1: So if I had a sticker about something else, a poem or something else and so I was…and someone else has complained about it why should I remove that sticker?
PCSO: Because it’s offensive.
D1: How is it offensive?
DAUGHTER2: Well they shouldn’t look at it then.
D1: It's like me putting lesbians...if I was to put lesbians don’t have a penis.. penises. Am I offending… Who am I offending?
PCSO: That’s… you again… you’re going away from the point. The point..
D1: How is it offensive?
D2: You shouldn’t look at it.
PCSO: Because it’s stating that trans peo… trans women are an idea not a..not a…and they don’t exist.
PCSO: Which is what your your… is it your mum?
D1: Yeah. It is my mum.
PCSO: It’s what your mum’s saying.
D1: Can’t believe all this about a sticker.
D2: They shouldn’t look at it then.
D1: Well…
PCSO: If you read something on there that was racist, you would understand why I was coming to say you shouldn’t have that on your door, wouldn’t you?
BD: Completely different. Completely different.
PCSO: How is it different?
BD: Completely different.
PCSO: How is it different?
BD: Because people are born black. Like, people are born their sex, male and female.
PCSO: No, that’s not… Again, you’re missing the point. All I can urge you to do is just to… just read… just educate yourself.
BD: I have. I have. I have. I have.
D1: Educate?
BD: Oh no. Sorry, I’m not… I’m not educated… I’m not being educated on being a man being told he’s a woman. A man is not a woman, he never will be, he’s a man.
PCSO: Hang on a sec.
BD: No, I’m not.
PCSO: So, nobody’s being told anything. This is what I’m saying… that that’s where there’s a big big gap in understanding here. There’s a huge gap in understanding.
This is excellent, to the point where I would print it out and carry a copy. I am sure that reading this out to any politicised police officer would have the same effect as spraying bug repellant, they would think twice and beat a hasty retreat.
Excellent analysis, thank you. I hope this lady takes it up with the authorities. Especially after Suella Braverman's speech about single-sex spaces and the "highly-politicised agenda" the other day.