Abstract
The Appellants, Cobban and Borders had previously been convicted of sending grossly offensive messages contrary to section 127(1) of the Communications Act 2003 (CA) between April 2019 and August 2019. Under section 127(1) of the CA, it is an offence to send ‘by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character’.
Each Appellant was, at the time in which the messages were exchanged, serving officers of the Metropolitan Police Service and both belonged to a WhatsApp group, consisting of another five officers from the same force. Included in this group was Wayne Couzens, who in June 2021 was convicted of the kidnapping, rape, and murder of Sarah Everard. It was only because of the arrest of Couzens that the messages came to light. Each Appellant was subject to police disciplinary proceedings, resulting in their dismissal alongside criminal proceedings. The case was heard before Westminster Magistrates’ Court in September 2022, and both Cobban and Borders pleaded not guilty. A third officer was acquitted.
The messages and exchanges which the prosecution argued to be contrary to section 127(1) of the CA, included comments about those with learning disabilities, including using the term ‘downys’; comments grounded in misogyny aimed at other female police officers and victims/survivors of domestic violence; racist remarks relating to certain metropolitan areas; and messages of a homophobic nature. Cobban and Borders maintained that the messages sent fell within the definition of ‘dark humour’. The Magistrates’ Court, found Borders guilty of five offences of sending ‘grossly offensive’ messages; Cobban was convicted of three offences under the same provision. Each was given a custodial sentence of 12 weeks. Each sought an appeal.
The questions before the High Court can be summarised as follows:
Can a message be considered grossly offensive if a District Judge notes that they were meant as ‘jokes’ and were not taken seriously by those who received the messages? For a message to be considered grossly offensive does the recipient of such messages need to be offended by their content? Can the mens rea element be met, where D did not reasonably expect that their messages would be read by person(s) who may be grossly offended by their contents? How does section 127(1) of the CA interact with Articles 8 and 10 of the European Convention on Human Rights (ECHR)?
A further appeal was also sought around sentencing, in which the Appellants’ legal teams argued that the sentences, namely a 12-week custodial sentence, were too harsh and instead, a suspended sentence should be granted.
The final judgment was given by Lady Carr and Mr Justice Saini on 26 July 2024 – 18 months after Cobban and Borders’ initial conviction. The High Court concluded the actus reus and mens rea of the offence had been met as the perception of the recipient is irrelevant to establishing an offence contrary to section 127(1) of the CA. It was also found that there was no expectation of privacy in this case due to the Appellants’ both being serving police officers when the messages were exchanged, although the High Court did accept that Article 10 of the ECHR had been breached. However, this breach was considered lawful as it pursued a legitimate aim under Article 10(2) and was necessary in a democratic society. The application for judicial review on the sentence given to each Appellant was also dismissed, as the test for irrationality had not been met.
Commentary
As noted by the High Court, this case ‘appears to be the first time that the application of section 127 of the 2003 Act […] to private consensual messaging has come before the senior courts’ (at [5]). In recent years, we have seen a steady increase in the number of individuals challenging their convictions under communication law (most notably, section 127 of the CA and section 1 of the Malicious Communications Act 1988 (MCA)). These provisions, which are increasingly being used to prosecute and convict individuals for comments made online, are highly controversial. Each prohibits the sending of a type of message. Most notably, both section 127(1) of the CA and section 1(1) of the MCA prohibit the sending of a grossly offensive message but neither Act defines the meaning of the term grossly offensive.
The High Court reaffirmed previous precedent, in particular, the actus reus and mens rea of the offence contrary to section 127(1) of the CA following the Appellants’ legal teams attempting to argue that for the actus reus and mens rea element to be met, how the recipient perceived the message, needed to be taken into consideration. This was, rightly so, rejected by the High Court, following significant consideration of previous case law, including, DPP v Collins [2006] UKHL 40, Chambers v DPP [2012] EWHC 2157 and R v Casserly [2024] EWCA Crim 25. Confirming, the actus reus of an offence under section 127(1) of the CA is met when three conditions are established: (1) a message is sent; (2) via a public electronic communications network; and (3) the message is found to be of a grossly offensive, indecent, obscene or menacing character. The mens rea is one of intent or recklessness, in which, like that of the actus reus, how the recipient perceives the message, is not an element of consideration. This finding of the Court follows extensive case law, in which it is well established in law, that such an offence can still be committed even if a message was intercepted by a third party, or was never read. In essence, the recipient's reaction is irrelevant to both the actus reus and mens rea of the offence. Considerable consideration was given by the Court to this aspect of the appeal.
However, little consideration was given to the meaning of grossly offensive by the Court and its compatibility with human rights law, most importantly, if it can be said that section 127(1) of the CA fulfils the requirements needed to be prescribed by law. The Court did consider, in some depth, the requirements that the restriction on the Appellants’ right to freedom of expression needed to fulfil a legitimate aim under Article 10(2) of the ECHR. Concluding this requirement had been met (for the protection of public safety and the prevention of disorder or crime). The High Court further concluded that the interference was also proportionate, given that the messages exchanged, ‘[…] fell right at the bottom of the hierarchy of speech’ (at [106]) and It was proportionate to the aim of maintaining public confidence in the police to express public disapproval of their actions through criminal liability, over and above professional misconduct proceedings. (at [107])
Yet, no reference is made to the provision being prescribed by law, in particular, if it can be said that citizens are able to guide their behaviour in line with clear and precise legal provisions, particularly given that there is no clear understanding of the law (either in statute or case law) as to what constitutes a grossly offensive message.
What is considered a grossly offensive message has created significant debate across the criminal justice system. For the House of Lords in DPP v Collins [2006] UKHL 40: to determine as a question of fact whether a message is grossly offensive […] the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taken into account of their context in all relevant circumstances […] The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates. (Collins at [9])
For the Court in Connolly v DPP [2007] EWHC 237 (Admin), grossly offensive was considered to take its ‘ordinary dictionary meaning’ (Connolly at [10]). Whereas Eady J's judgment in Smith v ADVFN [2008] EWHC 1797 likened grossly offensive communications to casual, ill-thought-out exchanges: [they are] like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or ‘give and take’. (Smith at [14])
Most recently, in DPP v Kingsley Anthony Smith [2017] EWHC 359 (Admin) the Court noted that when determining if a message is grossly offensive we must consider: whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message is grossly offensive. (Kingsley at [36–37])
Cobban & Borders provided an ample opportunity for the Court to clearly clarify the meaning of grossly offensive, particularly given that the District Judge, at the Magistrates’ Court, noted that the messages were intended as ‘darkly humorous jokes’ (at [16]). The High Court merely noted that just because the messages fell within the realms of ‘dark humour’ it did not mean they were not grossly offensive. This is a significantly important consideration missed by the judges, given the longstanding notion by the European Court of Human Rights that being offensive falls within a person's right to freedom of expression (Handyside v United Kingdom (1976) 1 EHRR 737 [49]). Put simply, to be offensive, is lawful; to be grossly offensive is not, and there is no bright line to distinguish between the two. This creates significant legal conundrums given that ‘some of us might draw the boundary in one place, whilst others who are particularly concerned about the development of electronic communications might draw it in another’ (Law Com No 381 (2018) [3.6]).
It has long been accepted that significant issues can be raised with communication-based law (Laura Higson-Bliss, Social Media, Criminal Law and Legality (Routledge: Oxfordshire, 2025) pp. 137–168). What one person may find grossly offensive, another may not. What one police force regards as offensive; another may consider it grossly offensive. These are not hypothetical scenarios, there are ample examples of misunderstandings across the criminal justice system as to what constitutes a grossly offensive message. Indeed, in R v Collins, Leicestershire Magistrates’ Court, 4 October 2004 (unreported) the Magistrates’ Court and the High Court (DPP v Collins [2005] EWHC 1308 (Admin)) would have acquitted Collins for leaving racially aggravated messages on an answering machine, after concluding that the messages did not constitute a grossly offensive communication. Whereas the House of Lords (DPP v Collins [2006] UKHL 40) concluded that the messages were of a grossly offensive nature. More recently, in R v Casserly, Chester Crown Court, 16 May 2022 (unreported), Chester Crown Court found Casserly guilty of ‘sending an indecent or grossly offensive electronic communication with intent to cause distress or anxiety’ contrary to section 1(1)b of the MCA. The Court of Appeal acquitted Casserly (R v Casserly [2024] EWCA Crim 25). Indeed, in 2021, the Law Commission, following an extensive review of communication law, recommended the repeal of section 127(1) of the CA (alongside the MCA) and their replacement with a new harms-based offence. This was originally accepted by lawmakers, but was later rescinded, following concerns that the recommended new offence of sending a harmful communication, did not adequately protect the right to freedom of expression.
It is therefore regrettable that the High Court did not emphasise the need to reconsider the use of both section 127(1) of the CA and the MCA in the wider criminal law framework or indeed, fully articulate the difficulty in applying this area of the law to communications sent online, where context is everything, but is often lost. And this has been abundantly clear in recent years, following cases such as Chambers v DPP [2012] EWHC 2157 (Admin), R v Alison Chabloz, Westminster Magistrates’ Court 11 January 2018 (unreported) and R v Casserly [2024] EWCA Crim 25 to name but a few, all creating different opinions by those working in the criminal justice system and/or the courts themselves. Evidenced further by the Law Commission in 2018: Precisely which factors are considered when determining whether a communication crosses the threshold from mere offensiveness to gross offensiveness, is still not clear in charging decisions nor in the case law […] An example which suggests some ongoing lack of clarity was the 2014, prosecution of Jordan Barrack, who pleaded guilty to posting ‘grossly offensive’ images on social media under section 127 of the CA 2003. Barrack had posted on Snapchat and Facebook a photo of two police officers, on which he had drawn two penises. He had been waiting over two hours to be interviewed in relation to witnessing an incident at a bar […] With limited reported cases to rely on, it is difficult to determine why the CPS decided that this particular case crossed the threshold from being ‘offensive, shocking or disturbing’ to ‘grossly offensive’. It may well have been that the fact the matter was targeted at a police officer that factored into the messages crossing the threshold of gross offensiveness. Whatever the reason, if ‘gross offensiveness’ is to continue to be included in communications offences, the law may need to provide more clarity as to how it may be determined. (Law Com No 381 (2018) at [5.74–5.76])
This further demonstrates the missed opportunity by the High Court to address concerns surrounding what is considered a grossly offensive message.
Interestingly, in this case, weight was also given to those sending the messages being serving police officers at the time in which the messages were sent, and therefore a higher standard of care was expected of them compared to the ‘ordinary person’ (at [13]). With the High Court going as far as arguing: by virtue of their position as police officers, and the fact that their conduct amounted to a clear breach of their professional standards (a matter not in dispute), the appellants could have no reasonable expectation of privacy in the specific messages in issue in this appeal. (at [93])
Consequently, the messages were seen to fall outside of the scope of Article 8 of the ECHR (the right to privacy) purely because the Appellants were serving police officers.
Not only are we now in a position where we have a hierarchy of speech, a long-established principle in the jurisprudence of the courts (Campbell v MGN [2004] UKHL 22 [148]), whereby political speech will always be deserving of the most protection, we are also in a position whereby certain public workers will also be held to a higher standard than that of the ‘ordinary person’. With the High Court emphasising throughout: in the case of private messages consensually exchanged on a medium such as WhatsApp between purely private persons (not public officials, such as police officers, discussing policing matters) […] we consider that such persons are very likely to have a reasonable expectation of privacy. (at [110])
However, it is not quite clear from the case, who would fall in this higher standard of care, other than police officers. There are clearly certain public-facing roles which may well fall within this category of person, such as politicians. However, there are examples of politicians making comments, which could well fall within the scope of gross offence and not necessarily, political speech. Many comments previously raised online by Nigel Farage and Boris Johnson come to mind. There are also questions about where this leaves us in terms of those working in the public sector in general. For example, could it be said doctors working in the NHS, exchanging private ‘darkly humorous’ jokes on WhatsApp as a coping mechanism for the day, could well find themselves falling foul of the law if such messages were to come to light? Or teachers, making remarks about pupils, which might be considered by some as grossly offensive?
Now that is not to say that the messages in this case were not worthy of prosecution, but it is regrettable that the Court did not consider in more depth how section 127(1) of the CA interacts more directly with Human Rights law, in particular, the prescribed by law element. Or consider more closely the floodgates which might open, with the notion that police officers can be held to a higher standard of care than the ‘ordinary person’ for private messages, particularly given, as noted by the High Court themselves, the increased number of officers being prosecuted for the sending of grossly offensive messages online (at [78]). It would not be surprising, if this is not the last, we hear of this case, especially given that the officers were reluctant to accept that they had broken the law (at [125]).
