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 karldufresne.blogspot.co.nz.  This article was first published in the Manawatu Standard and on Stuff.co.nz.