Here we go again … we looked last week at the case of Deyka Hassan who escaped an immediate jail sentence for a tweet sent after the murder of Lee Rigby. There are presumably many of these cases being investigated, some are taken no further, some result in formal police action and some end up in Court.
On 14th June 2013, another prosecution came to light. Michaela Turner, a 24 year old woman from Portsmouth who had been drinking made the mistake of posting what were described as racist comments on Facebook. The worst, it would seem, was this one “Feeling like burning down some mosques in Portsmouth, anyone want to join me?”. This lead to a charge under s127 Communications Act 2003.
She was sentenced to 8 weeks in prison, but suspended for six months. There was also an order for costs of £85 and a £60 Victim Surcharge.
There are Magistrates’ Court guidelines for this offence (page 40). The Prosecution put it in the highest category – “Single call where extreme language used and substantial distress or fear caused to receiver; OR One of a series of similar calls [where extreme language used, having only moderate impact on receiver]“. The starting point is 6 weeks in prison, with a range or a Community Order up to 12 weeks in prison.
Starting with the sentence. With the full credit for a plea of guilty, the sentence of 8 weeks places this at the top of the sentences. This implies that it is the most serious offence of its kind. I won’t say anymore about that, other than that it is hard to see how that can be correct.
But, should she have pleaded guilty? The words were clearly racist and offensive. But that is not enough – s127 requires the message to be “grossly offensive” or “menacing”. Was it? I doubt it. An important point about social media is that this was not directed at anyone, but at the world at large (most of whom would not look at it, or if they did, would not give it a moment’s thought).
But, lets assume that the offense is made out. Should it have been prosecuted?
The DPP has issued interim guidelines on Social Media prosecutions. Para 12 sets out 4 categories of communications :
- Credible threat of violence
- Specific targeting of an individual or individuals
- Breach of a Court Order
It’s pretty clear that this falls into the ‘others’ category. It is hard to see how the comment above is a credible threat of violence. The guidance then goes on to consider the nature of the message.
I have to say, whilst this is less clear cut than Deyka Hassan, I would still question whether this meets the test for prosecution. Is the message so offensive or menacing that it is necessary to prosecute? I can’t see it myself. It is not clear if any attempt was made to stay the prosecution as a breach of the DPP’s guidelines.
I tend to be more on the freedom of speech side of this debate. It seems to me that in this case, as in so many that end up in Court, a prosecution is disproportionate. Ms Turner shouldn’t be encouraged in saying what she said, and deserves a robust online response, but to spend many thousands of pounds bringing the machinery of the state down on to her seems pointless and wasteful. Ultimately, it is we, the people, who are paying for these prosecutions. My reckoning is that for this and the Hassan prosecution, we could have, for example, employed another nurse for the NHS. Maybe it’s time we all calmed down and grew up a little?