The High Court has quashed a conviction of one offence of improper use of a public communications network under section 127(2)(c) of the Communications Act 2003 in Scottow v CPS [2020] EWHC 3421 (Admin).
Section 127(2)(c) provides that a person commits an offence if “for the purpose of causing annoyance, inconvenience or needless anxiety to another [she] … persistently makes use of a public electronic network”.
S had posted tweets concerning H who had a public profile as an activist and advocate on transgender rights. There was an ongoing civil case which was stayed pending the outcome of the criminal proceedings. S argued that the prosecution was an abuse of process, the charge was duplicitous, and partly out of time. She also claimed that there were substantive law issues. Those acts that were within time could not be described as “persistent” and, in any event, under section 127(2)(c), the facts alleged disclosed no case to answer, so and it was wrong in law to convict her on that factual basis. In this regard she relied, among other things, on human rights arguments founded on the right to freedom of expression.
The court upheld her appeal.
S had not been charged with malicious communication or harassment but a charge under section 127(2). The court decided that the first instance judge had erred in her interpretation of section 127. Section 127 was not aimed at the actual content of communications but at the abuse of facilities provided by a public network; for example, prank calls, silent calls, heavy breathing and other common forms of nuisance phone call containing no meaningful content. Annoying tweets did not fall into that category.
In addition, the tweets had not been persistent. It was not enough that they all referred to the same individual. The communications must also have some connecting theme or other factor, if they are to count as persistent. It could not be enough that they all referred or in some way related to the same individual. These were at least two separate courses of conduct, engaged in at different periods of time, separated by a period of several months, and they were of different character. The first instance judge had also been incorrect to consider that causing annoyance, anxiety or inconvenience was “a” purpose. She misdirected herself by indicating that whether S tagged or blocked H did not have much bearing on her purpose. The first instance judge also wrongly regarded H’s evidence about the actual effect of the messages on her as relevant.
Finally, the judge’s review of the case under the European Convention of Human Rights had been inadequate. The right to free speech under Article 10 included both the right to offend and, even the right to abuse, another person. The first instance judge had considered that a criminal conviction was merited for acts of unkindness and name calling, and that such acts could only be justified if they contributed to a “proper debate”. The idea of a “debate” arose in the context of privacy case law, but there was nothing in S’s messages that would be considered to be an interference with H’s right to preserve private information under Article 8. The law did not provide that individuals were only allowed to make personal remarks about others online if they did so as part of a “proper debate”. The stated aim of the prosecution was the protection of H from persistent and unacceptable offence, which was a legitimate aim. It fell within the scope of the “protection of the rights of others”, which may be, but do not have to be Convention rights. However it was not justified as necessary in a democratic society. A prosecution and conviction on the facts would represent a grossly disproportionate and entirely unjustified state interference with free speech.
