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Miller v College of Policing [2021] EWCA Civ 1926
A former police officer, Mr Miller, was the subject of a non-crime hate incident recorded by the police. Mr Miller had written comments on Twitter which a complainant, a transgender woman, had considered to be transphobic. Following guidance in place at the time (which has since been updated but, said the Court of Appeal, insufficiently) a non-crime hate incident was recorded.
This was a result of “perception-based recording”. That is the police policy that non-crime hate incidents must be recorded by the police as such if the incident is subjectively perceived by the “victim or any other person to be motivated by a hostility or prejudice against a person who is transgender or perceived to be transgender”.
The Court’s starting point was that the police are subject to the DPA 2018 and under Part 3 may process data for law enforcement purposes. It was not controversial that the collection on non-crime hate incident data falls within these purposes.
After the entry has been created, the guidance to the police on retention is in the APP (“Authorised Professional Practice”) document on Information Management – Retention, review and disposal published by the College of Policing in 2014. Non-crime hate incident data will be retained either (i) for an initial period of six years, following which it may be subject either to review at five-yearly intervals or automatic time-based disposal or (ii) for a minimum of six years.
During the period of rention, the Court noted that non-crime hate incidents cannot be disclosed on ordinary criminal record certificates but may be disclosed on an enhanced criminal record certificate (“ECRC”). The decision as to whether to include a given incident is that of the local Chief Officer.
The Court held that Mr Miller’s “gender critical” beliefs, that trans women are men who have chosen to identify as women, were protected by Article 10. Accordingly, the recording of non-crime hate incidents was an interference with freedom of expression and the knowledge that such matters were being recorded and stored in a police database was likely to have a serious chilling effect on public debate.
With such records being created automatically, and the officers having no discretion as to whether a non-crime hate incident should be created or the application of a proportionality test, the guidance was unlawful.
A monthly data protection bulletin from the barristers at 5 Essex Chambers
The Data Brief is edited by Francesca Whitelaw KC, Aaron Moss and John Goss, barristers at 5 Essex Chambers, with contributions from the whole information law, data protection and AI Team.
