‘Language and labels matter’: The implications of the Court of Appeal judgment in Miller for policing data analytics and AI

Activity: Talk or presentationOral presentation


On 20 December 2021, in an important but rather overlooked decision, the Court of Appeal of England and Wales ruled that the parts of the College of Policing’s Hate Crime Operational Guidance relating to non-crime hate incidents encouraged conduct which violated Article 10 ECHR (freedom of expression). The Guidance laid out a policy of perception-based recording i.e. that non-crime hate incidents must be recorded by the police if the incident is subjectively perceived by the victim to be motivated by hostility or prejudice, irrespective of any evidence of ‘hate’.

The judgment has serious implications for the use of ‘non-crime’ and intelligence data within policing data analytics and AI. The Court identified the connection between categorization of a non-crime hate incident, the requirement to record and the detrimental impact on freedom of expression – the recording was not merely an administrative, statistical matter of ‘intelligence’ with little real consequences for individuals.

In the wider policing context, intelligence such as records of non-crime hate incidents are now used as data inputs in AI and data analytics models. It is understandable that those involved in policing data analytics would prefer a nuance-free categorization or label of ‘non-crime hate incident’ contributing to an unambiguous data output e.g. number of non-crimes associated with a higher risk classification of an individual. However, the implications of the Miller judgment leads to the conclusion that potential usage of ‘non-crimes’ and other forms of intelligence within AI and data analytics in respect of individual classification or prediction will require new technical and governance safeguards in order to avoid the risk of misleading outputs and disproportionality.

This paper will review the key findings of the Court of Appeal in Miller, highlight how non-crimes are used within policing AI and recommend new legal, ethical and governance safeguards.
Period13 Apr 2022
Event titleBritish and Irish Law Education and Technology Association Conference 2022
Event typeConference
Degree of RecognitionInternational