The full judgment, on BAILLI, is here.
Owen Bowcott’s report of it is here.
Click to follow @BAILII, @OwenBowcott or @John_Cooper_QC.
This is a very interesting discussion of the actus reus, making reference to Smith and Hogan’s “Criminal Law” which GDL students at BPP use in studying criminal law.
26. This is the first occasion when this court has been required to address the ingredients of the offence created by s.127(1) of the 2003 Act in the context of messages of a menacing character. As we have seen, however, the section has been considered in the context of “grossly offensive” messages in Director of Public Prosecutions v Collins.
27. It is perhaps difficult for anyone nowadays to remember the time when the telephone system was at the forefront of communications technology of which “Twitter” is a modern example. Nevertheless as long ago as the Post Office (Amendment Act) 1935, s.10(2)(a) introduced a prohibition against the misuse of the telephone to communicate indecent, obscene or menacing messages, and because of the limited technology available at the time, these messages would largely be communicated to a single, often deliberately targeted recipient like telephone operators, who were subjected to indecent, obscene or menacing messages. Unsurprisingly, no one thought that was appropriate and statutory prohibitions against such messages were accordingly introduced. Section 127(1) of the Act has simply updated the protection to be provided from the misuse of technology. This once took the form of a telephone system and has now advanced to the present electric communications networks which, notwithstanding that “Twitter” was not invented at the date when the 2003 Act came into force, includes messages of the proscribed description sent by “Twitter”.
28. The 2003 Act did not create some newly minted interference with the first of President Roosevelt’s essential freedoms – freedom of speech and expression. Satirical, or iconoclastic, or rude comment, the expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even if distasteful to some or painful to those subjected to it should and no doubt will continue at their customary level, quite undiminished by this legislation. Given the submissions by Mr Cooper, we should perhaps add that for those who have the inclination to use “Twitter” for the purpose, Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.
29. It is elementary, and unsurprisingly there was no dispute before us, that the offence of which the appellant was convicted cannot be proved unless the content of the message was of a “menacing character”. Given that there is “disappointingly little coherence in English law’s approach to threat offences” (Smith and Hogan’s Criminal Law, 13th edition, at p951) we do not think that an analysis of the numerous other offences based on threats, including blackmail, takes the interpretation of this statutory provision any further. We were told that the word “menace” is defined in the shorter Oxford dictionary as “a thing threatening danger or catastrophe; a dangerous or obnoxious thing or person; a great inconvenience”, and that as an intransitive verb, to “menace” was to “utter menaces; be threatening”. Mr Smith submitted that no more, and no less, was needed than the application of ordinary language to the context in which any particular message was expressed and to all the relevant circumstances. Mr Cooper suggested that for a message to be of a menacing character it must, on an objective assessment, contain a threat of such a nature and extent that the mind of an ordinary person of normal stability and courage might be influenced or made apprehensive. Our attention was drawn to DPP v Collins, in the Divisional Court, while considering the meaning to be given to “grossly offensive” within the section, Sedley LJ identified the four different classes of message proscribed by s.127(1)(a).
In the context of a menacing message he observed:
“… fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen”.
30. The attraction of the argument, implicit in the development of Mr Cooper’s submission, that it is a necessary requirement of this offence that the message must be credible as an immediate threat to the mind of an ordinary person of normal stability and courage does not quite penetrate to the heart of the problem. The telephone operator in the 1930s and 1940s may not have believed that the person using the telephone to threaten violence would or could implement the threat, but that would not extinguish its menacing character. After all a message which cannot or is unlikely to be implemented may nevertheless create a sense of apprehension or fear in the person who receives or reads it. However unless it does so, it is difficult to see how it can sensibly be described as a message of a menacing character. So, if the person or persons who receive or read it, or may reasonably be expected to receive, or read it, would brush it aside as a silly joke, or a joke in bad taste, or empty bombastic or ridiculous banter, then it would be a contradiction in terms to describe it as a message of a menacing character. In short, a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside this provision, for the very simple reason that the message lacks menace.
