We read Adam’s post about the word ‘insulting’ being removed from Public Order act 1986 s 5 with interest. In it he discussed the Communications Act 2003 s 127 and how despite the amendment to section 5, section 127 means that the courts/police remain the people responsible for deciding whether a Tweet or Facebook status was grossly offensive and therefore criminal.
He posed (in bold) three key questions, the answer to each, he suggested, was ‘no’. We disagree.
First, do we really want police and judges deciding which jokes, throwaway comments and idiotic off-the-cuff remarks are ‘grossly offensive’?
The answer to this, in our opinion, has got to be ‘yes’. Firstly, the Police/CPS make the charging decision as to whether an individual should be brought before the courts to answer for his or her actions. (It may be petty, but in this scenario, it is not the police ‘deciding’ what is grossly offensive, but merely bringing their case as to what they believe to be ‘grossly offensive’). Why should grossly offensive remarks be any different?
Secondly, judges (or juries) decide what is grossly offensive in this context, just as they do when they rule on a submission of no case to answer (whether or not there is sufficient evidence to proceed against the defendant) or in directing a jury to acquit where they feel the circumstances dictate.
Thirdly, there are checks and balances in place to remedy any mischief. Were a defendant to be brought before the court for making a grossly offensive remark on Twitter, there are several stages at which that decision is examined; the CPS charging stage (whether it passes the threshold, considering the DPP’s new guidance), pre-trial hearings, trial and appeal. Whilst it is not desirable that an individual is ‘dragged through the courts’ as was the case with Paul Chambers, there are procedures in place. The Paul Chambers case is (hopefully) a one-off, the beginning of the interaction between the law and social media, and is unlikely to happen again.
There is a football analogy here; when clubs (take Chelsea as an amusing example) are considering sacking their managers, they (the press and the blokes down the pub) all too often ask the question ‘is it time for him to go?’. I suggest the correct question is in fact, ‘if we sack him, can we get someone better to replace him?’, otherwise, there seems little point. This situation is the same; the police/CPS deciding to bring cases against individuals who they believe have contravened the law, and judges deciding whether in fact they have done so, is a good system. It works well and has in place checks and balances. If there is a better alternative, We would like Adam to share it with us!
We happen to think that trial by jury is the best method of determining whether something is grossly offensive; although this has obvious cost implications, it provides a more legitimate decision as to what is grossly offensive (to the public) and it limits the degree to which commentators can criticise the developing case law and ‘line in the sand’ as to what is and is not grossly offensive.
Secondly, is there a single conviction under this law which has made society a safer, better place without unduly impinging on free speech?
Most if not all cases under section 127 are going to be concerned not with public safety (is some teenager calling a celebrity a cunt an issue of public safety?)
There will be cases where a section 127 offence is properly charged in areas that have nothing to do with free speech. A good example would be someone making threats to their former partner in a phone call that falls short of a threat to kill but should still attract the sanction of the criminal law. Or where there is such a threat, but the caller is very drunk or far away so the threat is not a serious or immediate one.
Also, one of the purposes of section 127 (see section 127(2)) was to protect the public from ‘junk mailings’. Whilst this does of course infringe on free speech, it is hard to argue that it is not a legitimate interference.
Thirdly, does s.127 add anything to the already existing criminal protections against harassment and stalking?
We think the answer to this question is yes, but in limited circumstances. Firstly, as Adam has noted previously, section 127 was enacted prior to Twitter and Facebook existing, and was in fact a re-enactment of a provision designed to criminalise grossly offensive telephone messages.
Firstly, whilst there will inevitably be some overlap in how offences are charged (robberies charged as theft and section 47, or causing the death of a child charged as manslaughter for example) section 127 will still apply to nuisance phonecalls. In R v Wood 2012 EWCA Crim 156, the defendant pleaded to public nuisance after bombarding the charity Childline with phonecalls, graphically describing how he was abusing his (fictional) daughter. This would have come under the ambit of section 127, however presumably the decision was taken to charge the common law offence of public nuisance as there is no limit on the maximum sentence. Mr Wood received 3 years. Although this is an extreme case, it is an example of the type of behaviour which whilst grossly offensive, would not be covered by harassment or stalking, as there was no fear of violence.
Where an individual might make hurtful comments via social media, perhaps about a deceased friend of loved one, that do not threaten violence or put the victim in fear of violence, it is necessary for the law to be able to deal with such an event.
It seems to us therefore that section 127 is a necessary tool for the police and CPS to have. We would not disagree with Adam that section 127 can be (and has been) misused by criminalising jokes and comments which, while unpleasant should not be criminalised. The issue where the police and CPS (and to a lesser extent the courts) draw that invisible line.