Guidance requiring police officers to record hate incidents “without any evidence of hate” unlawfully restricts freedom of speech, the court of appeal has heard. Lawyers for Harry Miller, a former police officer who was visited at work by other officers over alleged transphobia, told the judges the College of Policing’s guidance went too far. “A policy that mandates the recording of a ‘hate incident’ without there having to be any evidence of hate is quintessentially irrational and unreasonable as a matter of common law,” his lawyer Ian Wise QC told the court in written submissions. Miller, who describes himself as “gender critical”, has been fighting a legal battle over his treatment at the hands of Humberside police, whose officers turned up at his place of work to speak to him about allegedly transphobic tweets in 2019. While the officers told him he had not committed a crime, they said his tweeting was being recorded as a hate incident under the college’s guidelines. Miller, who founded the campaign group Fair Cop, said that had a “substantial chilling effect” on his right to free speech, a view with which the high court judge agreed in a ruling delivered in February. He also claimed that the guidance, which defines a transgender hate incident as “any non-crime incident which is 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”, was unlawful. But the high court judge, Mr Justice Julian Knowles, rejected this, saying the college’s policy “serves legitimate purposes and is not disproportionate”. Miller is appealing that ruling. On Tuesday, Wise told the court of appeal that the guidance pursues “the legitimate aim of preventing disorder and crime” but it does so “in a disproportionate manner”. He argued that the guidance was uncertain, because “the reasonable or, indeed, any reader of the guidance simply would not know whether a particular statement would be recordable under the guidance”. Jason Coppel QC, representing the College of Policing, said any interference with the right to freedom of expression “is proportionate to the legitimate aims pursued by the guidance”. He said it had been “fully replaced” by new guidance, which included “a strong warning against police taking a disproportionate response to reports of a non-crime hate incident”, and directly referenced the high court’s ruling. Coppel said “perception-based recording of the hate element of an incident” was important for the police, adding that monitoring hate incidents “assists in the prevention of the escalation of hate-based activity” and “helps inform police action”. The hearing before Dame Victoria Sharp, Lord Justice Haddon-Cave and Lady Justice Simler is due to conclude on Wednesday.