Malicious Communications: Freedom of Email? Elected Officials,Disability and Expression

Facts

The case centred on an email. In June 2020, the appellant had sent an email to a town councillor, raising concerns about the Middlewich Cemetery Board. The complainant, another elected councillor copied into the email, had replied that she would like to see the evidence supporting the appellant's allegations. In response, the appellant had sent an email to the complainant, copying in others. The email had commented on the complainant's disabilities and questioned her ability to carry out her role. The complainant reported the email to the police.

In the Crown Court at Chester, the appellant was tried for sending an indecent or grossly offensive electronic communication with intent to cause distress or anxiety, contrary to section 1(1)(b) of the Malicious Communications Act 1988. He represented himself during the proceedings. In evidence, the appellant considered that the complainant's disabilities affected her ability to perform her role and that he was entitled to express his view. The appellant submitted that the jury should be directed to take due account of the complainant's public role and the appellant's free speech rights. Instead, the trial judge directed the jury that the real question was simple, namely whether the appellant's view (as expressed in the email) fell foul of the law by reference to normal everyday language and the standards of ordinary decent people. The trial judge also summarised the parties’ respective arguments, including the appellant's right to express an opinion to his councillor. The jury convicted him. When sentencing him on 20 June 2022, the judge remarked that, though the appellant had the right to challenge councillors robustly, he had to do so properly and courteously.

Having been granted leave by the full court as to one of his four grounds (and refused leave on the remaining three), the appellant sought to appeal against his conviction.

Held, allowing the appeal, article 10 of the European Convention on Human Rights guaranteed a fundamental right not limited to information or ideas on political issues or serious criticism. The common law right of free speech was co-extensive (at [35]). Although some forms of expression fell beyond the scope of the right (such as solely vulgar abuse or, under article 17 of the ECHR, ideas aimed at destroying democracy), the law did not require courtesy. The right to free speech covered speech conveying offensive, disturbing or even shocking information or ideas (at [37]). The email in question may have comprised passages that were insulting, upsetting or offensive, but it clearly did not fall under article 17 of the ECHR (at [39]). Nor was it a communication containing nothing but abuse (at [40]).

The appellant had been prosecuted for exercise of his right to free speech and expression of opinion (at [41]). The prosecution was incompatible with that fundamental right (at [42]). While the right was qualified, the common law right was subject only to clear exceptions under the common law or statute, and article 10(2) prohibited interference unless it was necessary in a democratic society in pursuit of a legitimate aim. However, that did not mean that the criminal law automatically or invariably prevailed over the right to free speech (at [43]).

Three categories of cases could be identified. First, those in which the criminal law did not interfere with any fundamental right, removing the need for any assessment of proportionality. They included cases beyond the scope of articles 9 to 11 of the ECHR due to incitement of violence or rejection of democracy. Second, those in which the criminal law did, or might, interfere with such rights, but proof of the offence alleged would be sufficient to make a conviction proportionate. They included common offences, such as those of violence and damage to property. Third, those in which the law did, or might, interfere with such rights, but the elements of the offence alleged would not be sufficient to make a conviction proportionate, such that the court would need to address proportionality expressly. They included the duty to interpret provisions in a way compatible with the ECHR, as section 3 of the Human Rights Act 1998 required. That may require an assessment of the proportionality of a conviction in the specific circumstances (at [44]–[45], citing In re Abortion Services (Safe Access Zones) (Northern Ireland) Bill [2022] UKSC 32).

The appellant's case did not fall within the first or second category. Rather, it was necessary to interpret and apply the statute such as to meet the requirement of proportionality (at [46]). Six considerations could be identified. First, whether a message was ‘grossly offensive’ was a question of fact, assessed objectively by reference to its contents and context, not its actual effect. Second, the question was whether the message went beyond the limit of that which was tolerable in society. Third, the answer must reflect society's fundamental values, including the great weight given to free speech, the need for tolerance, and the special need for tolerance by those in public positions. Fourth, the context had to be considered, with particular weight attaching to political speech. Fifth, where there was a case to answer and the case engaged free speech in a political context, the offence had to be defined in terms reflecting the enhanced meaning of ‘grossly offensive’. Sixth, it was insufficient to prove that the message was likely to have an effect and that the defendant knew or foresaw that (or gave no thought to it). Purpose was not be conflated with intention; it connoted a motivating objective. That approach was restrictive and, in being so, gave further effect to the duty of interpretation under section 3 of the HRA 1998 (at [48]).

The trial judge should have addressed proportionality by tailored legal directions (at [49]). The jury was not properly directed as to both limbs of the offence. The considerations either were not addressed or were addressed inadequately. The jury should have been directed that the law protected free speech in a democratic society, and that ‘grossly offensive’ depended on the contents, the context and the sender's purpose(s) (at [50]–[52]). The conviction was unsafe (at [54]). It was doubtful that a re-trial would be in the interests of justice, given that the appellant had already served in full the sentence imposed on him (at [56]).

Commentary

There is much to like about the Court of Appeal's reasoning. It is alert to the law's holistic framework. It does not view the criminal law in a vacuum. It positions the criminal law among the broader values at play in offences that concern speech and other forms of communication, such as those offences prohibited by section 1 of the Malicious Communications Act 1988. For example, the court notes that the criminal law by no means ‘automatically or invariably’ trumps freedom of expression (at [43]). It helpfully confirms three categories of case and how the criminal law interacts with proportionality in each category. With that comes the opportunity for defendants in future cases to rely on this decision as recent authority for the proposition that proportionality may require an assessment of the specific facts of a case. This provides some hope at a time when the criminal law has become a familiar vehicle through which the government prohibits the activities of protestors and activists. Criminalisation must be tempered by the fundamental rights of the individual.

In the light of other cases involving these issues (such as damage to the statue of Edward Colston in Attorney General's Reference (No 1 of 2022) [2022] EWCA Crim 1259), it might be thought that this decision brings with it new potential for defendants. However, note the Court of Appeal's subtle aside. An offence of violence or which concerns damage to property will, by proof of its elements alone, be proportionate (at [45]). Unfortunately, though this decision is a change in tenor for the Court of Appeal, it offers no radical opportunity for protestors and activists. Properly understood, it affirms the conventional analysis. In particular, ‘grossly offensive’ must be understood as having a high threshold and ‘purpose’ must not be demoted to a lesser mental element. The reasoning is hardly transformative, though it remains important that the court confirms the correct position on these issues.

While there is much to commend, the court's reasoning is incomplete when viewed in a different way. What is the—obvious—word missing from the judgment? Discrimination. The court makes no reference to it, even by implication. Granted, the court notes that the complainant was ‘profoundly deaf, visually impaired and [had] a muscle-wasting condition’, and that she had ‘a guide dog, hearing aids and sometimes used a wheelchair’ (at [9]). Nonetheless, it does not associate these facts with the concepts of discrimination and disability, though it refers briefly to an article in The Daily Post discussing her ‘disabilities’ (at [13]). Clearly, these are connections missed.

It is unclear why the Court of Appeal omits them. To a layperson, they are likely self-evident. The appellant expressly criticised the councillor for lacking the ‘basic intelligence or aptitude to be a councillor’. He referred to her guide dog and an apparently embarrassing incident that had shown her to have ‘the reading ability of a primary school child’. Finally, he questioned how a councillor with ‘limited reading ability, [and who was] profoundly deaf, and partially sighted’ could ‘make a difference’ (at [12]). It is only possible to appreciate the true issue in the case by considering what the appellant sought to challenge in his email. He was not simply expressing a different political point of view or a logistical worry. He was challenging the complainant's ability to perform her public functions because she was disabled.

The Court of Appeal should have engaged with this issue. It is not clear from the judgment whether counsel made submissions about discriminatory expression or, indeed, referred the court to any authorities on the point. Either way, the topic is entirely absent from the judgment. By omitting the topic, the court's reasoning is deficient. Although expression in a political context deserves stronger protection than expression in less important contexts, there is a compelling counter-argument when the expression involves discrimination. It is arguable that the appellant's email here was, in part, discriminatory. On one view, to question how a councillor can make a difference because they are disabled is discriminatory. It assumes that disabled people are less valuable, or less able to make positive change, because they are disabled. On another view, the email might—at a stretch—involve a genuine effort to understand the councillor's perspective and what adjustments she needed (and how these issues may have affected her performance of official duties). Such a question might be legitimate. The distinction is a fine one. Certainly, it is one crying out to be analysed. Yet the court pays it no attention, despite its detailed lists of considerations for the jury.

If the court had included this issue, it might have offered a more sensitive analysis. It, for instance, asserts that the law expects those receiving communications in a political context to have ‘a thicker skin than those who are ordinary citizens’ (at [52]). Once more, this seems to be a valid observation—but one that needs to be qualified when the expression in question is discriminatory. Holding elected officials accountable must be done robustly and without the threat of the criminal law. At the same time, holding officials accountable is not done by discriminating against them. Even those in positions of power can suffer discrimination, though they may be able to use their power to insulate themselves from the worst effects of the discrimination. To challenge a disabled councillor about her ineffectiveness because she is disabled is not to hold her accountable in a meaningful sense.

This line of criticism does not reject the Court of Appeal's overall conclusion. The trial judge still misdirected the jury. Indeed, the criminal law is unlikely to be the appropriate arena for litigating the discriminatory behaviour of constituents towards their elected officials (at least in cases as low-level as this one). Such an intrusion, with the criminal law's stigma and coercive tools, would probably do more harm than good. The better forum for these issues might be, in certain contexts, employment law or private law in general. Rather, the criticism is made here in the hope that the Court of Appeal will offer more sensitive analysis in the future. The court should have identified accurately all the issues in the appellant's case. Instances of discriminatory expression should be differentiated from those involving genuine attempts at holding elected officials accountable. While none of these cases may be suitable for the (frequently) blunt tools of the criminal law, they still deserve complete and accurate analysis when they do arise. The Court of Appeal, in this respect, misses the mark.