41. Freedom of expression in relation to the recording of NCHIs has recently been considered by the Court of Appeal in the case of
Miller v The College of Policing [2021]. On 20 December 2021, the Court ruled that the College of Policing’s 2014 operational guidance on NCHIs interfered with an individual’s right to freedom of expression in a ‘real and significant’ manner. To be lawful, such interference could only be justified if it pursued the legitimate aims of: (a) preventing crime, and (b) protecting the rights of others, so long as these two aims were achieved in a proportionate way. The Court expressed a particular concern that the 2014 guidance interfered with the right to freedom of expression in a way that was not proportionate, expressing that the legitimate aims of the guidance could have been achieved in a less intrusive way. The overall impact of the 2014 guidance on freedom of expression was ruled to be disproportionate. In particular, although there were some exceptions, the 2014 guidance in general provided that all complaints should be recorded (including irrational complaints or those with no evidence of hostility). As a result, the College published interim guidance on 21 July 2022 to address these concerns, prior to the publication of this code.
42. The importance of freedom of expression has also been recognised in case law as it concerns discussion or debate on topics related to certain protected characteristics.
For example, in the employment law context in the case of
Maya Forstater v CGD Europe, the Employment Appeal Tribunal held that the appellant’s view that biological sex is immutable and not to be conflated with gender identity (described by the court as a ‘gender critical’ belief) was protected under ‘philosophical belief’ in the Equality Act, and as such, the appellant should not have been discriminated against in her work. In the context of employment rights, the judgment specified that this does not permit abusive conduct, noting ‘that does not mean […] that those with gender-critical beliefs can indiscriminately and gratuitously refer to trans persons in terms other than they would wish’, and adding that ‘such conduct could, depending on the circumstances, amount to harassment of, or discrimination against, a trans person.’ Nonetheless, the Tribunal recognised that the mere expression of ‘gender critical’ beliefs, in and of themselves, are protected in law. This judgment is significant given that the beliefs expressed by the appellant (i.e. gender critical beliefs) were similar to those in the case of
Miller v The College of Policing [2021], discussed in paragraph 41.
