Saturday, February 22, 2020

Karl du Fresne: Not before time, an English judge upholds the right to free speech

Until a few days ago, I hadn’t heard of Mr Justice Julian Knowles. Neither, I daresay, had many other people. But we owe Mr Justice Julian Knowles a debt of gratitude for driving a long-overdue stake into the ground in defence of free speech.

Knowles, a judge of England’s High Court, presided over a case in which a man named Harry Miller challenged the legality of police action taken against him over comments he had made on Twitter relating to trans-gender women.

Miller opposes planned law changes that would make it easier for people to legally change their gender. Along with many British feminists, he’s concerned that this would allow traditionally female spaces – for example, women’s changing rooms, women’s gyms and women’s refuges – to be invaded by people who are biologically male but identify as female.

In one tweet, Miller questioned whether “trans” women were real women. In another, he commented satirically: “I was assigned mammal at birth, but my orientation is fish” – thereby ridiculing the notion that people can change a biological reality.

Someone going by the name of Mrs B, who was described in court as a “post-operative trans-gender lady”, complained to the police that Miller’s tweets were trans-phobic.  The police duly recorded the complaint as a “non-crime hate incident” and sent a constable to Miller’s workplace to give him a talking to.

Miller wasn’t there, so the officer, showing scant respect for his privacy, left his card with a company director and asked that Miller phone him.

In the subsequent phone conversation, the constable accused Miller of promoting hate. He said a “hate incident record” would be kept on file and any further similar comment on Twitter could be treated as a criminal matter. A file note referred to the anonymous Mrs B as “the victim” and Miller as “the suspect”.

Miller gave evidence – though it was disputed – that the constable then gave him a brief lecture about how, in the womb, a female brain could get “confused” and generate the wrong body parts. He said he knew this from a police course he had been on.

Here, writ large, is an example of what can happen when valid expressions of opinion are criminalised as “hate speech” and ideologically captured police officers are empowered to make subjective judgments about what constitutes “hate crime”.

It’s hardly the first such case. In 2001, a Liverpool pensioner put up a UK Independence Party poster bearing the words “Keep the pound, Leave the EU”, “Don’t Forget the 1945 War” and “Free Speech for England”. He was arrested and charged with racially aggravated criminal damage.

In the same year, police ordered an Essex baker to take down a poster promoting English bread with the slogan “None of that French rubbish” because they believed it would stir up racial hatred.

But Miller struck back, claiming the police were using George Orwell’s novel Nineteen Eighty-Four, set in a totalitarian state where people are arrested for thought crime, as an operating manual.

He went to court – and fortunately for all of us who live in supposedly open, liberal democracies, he struck a judge who largely agreed with him.

In a 65-page judgment, Justice Knowles ruled that the police had acted unlawfully and disproportionately interfered with Miller’s freedom of expression. He went on to say: “In this country we have never had a Cheka, a Gestapo or a Stasi” – a reference to secret police organisations notorious for ruthlessly seeking out and punishing dissenters.

The judge pointed out that the tweets had been recorded as a hate incident “without any critical scrutiny … or any assessment of whether what she [the anonymous Mrs B] was saying was accurate”. He said there was not a shred of evidence that Miller was at risk of committing a crime.

You might well wonder how it could be that in Britain, once a beacon of liberty, over-zealous cops now act as state censors. It seems to have originated as an extreme over-reaction to the 1999 Macpherson Report, in which police were castigated for their shortcomings – including “institutional racism” – in investigating a racially motivated killing in London. Since then, the UK police have gone all-out to demonstrate their solidarity with minority groups.

Whether Knowles’ ruling will serve to curb the abuse of police powers remains to be seen. In the meantime, it’s highly relevant in New Zealand, for two reasons.

The first is that our judges traditionally take note of developments in British law and are often guided by them. But more to the point, there is mounting pressure from government politicians and the Human Rights Commission for the police to be similarly politicised here.

The Christchurch mosque massacres provided the enemies of free speech with an ideal opportunity to criminalise legitimately held opinions on the pretext that "hate speech" must be deterred. But that's a sure path to authoritarianism, and anyone wanting evidence of the threat it would pose to traditional freedoms need only read Justice Knowles' judgment.

Karl du Fresne, a freelance journalist, is the former editor of The Dominion newspaper. He blogs at This article was first published in the Manawatu Standard and on


Peter D said...
Reply To This Comment

A far more serious case notably the one being heard today (UK time)in the Woolwich Crown Court concerning the extradition of Julian Assange is being heard by a "hanging judge" Vanessa Baraitser will set the standard for what is considered "free speech" in the western world for a long time to come.
I suspect as do many others that history will find in favour of Assange for revealing to the world the extent of the US military's crimes in Iraq and consign this suppression of the truth incident as yet another example of post 9/11 erosion of liberty and justice by the state in the name of security.
It's becoming increasingly clear that no one has lost their life due to what Wikileaks has revealed to date.
The power of the USA to reach out and persecute those who reveal the inner workings of the ruling class and a military that acts in their interest should be a warning to any journalist who has the guts and integrity to speak out against criminal acts enabled by state actors anywhere.
Remember the gross miscarriage of justice that occurred for the victims of the Mei Lai massacre and how the whistle blower ended up being the butt of the American public's ire and the senior officers involved never even faced trial despite being indicted.

Unknown said...
Reply To This Comment

Who is Peter D. At least jave the courage to use your full name.
John Raaty