The author of today’s title is a person with the Daily Mail commentator profile, “Geeabee” from Dorset. URL: https://www.dailymail.co.uk/registration/1352802393164203/Geeabee/profile.html – all of which explains the image above. Geeabee’s” comment was in relation to this case: https://www.dailymail.co.uk/news/article-11382365/Met-officer-ex-PC-jailed-12-weeks-swapping-grossly-offensive-messages-Wayne-Couzens.html – which (according to the Daily Mail report) to the vast bulk of reasonable people would indeed appear to be grossly offensive.
Today’s post is not primarily about the case “Geeabee” commented upon but a commentary of the news story about six former Metropolitan Police officers recently charged with communications offences that would commonly be described nowadays as “hate crimes”.
Herewith a report giving adequate details: https://inews.co.uk/news/met-police-officers-charged-racist-whatsapp-message-prince-harry-meghan-markle-2548994
The six men are charged with; “sending by public communication grossly offensive racist messages.” This being an offence under Section 127(1) (a) of the Communications Act 2003 – below:
Section 127 – Improper use of public electronic communications network
(1) A person is guilty of an offence if he—
(a) sends 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; or
(b) causes any such message or matter to be so sent.
(2) A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he—
(a) sends by means of a public electronic communications network, a message that he knows to be false,
(b) causes such a message to be sent; or
(c) persistently makes use of a public electronic communications network.
(3) A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both.
(4) Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).
URL: https://www.legislation.gov.uk/ukpga/2003/21/section/127/2011-06-15
British Gazette comment: Clearly the CPS case rests on two points:
#1: That the defendants communicated electronically by “public communication”
#2: That the communications were grossly offensive racist messages.
In this blog-post we will ONLY be commenting on #1. We cannot comment on #2 as we do not have the full text of the communications.
The legal argument would be: Is the communication method used public?
IMHO, I think it is not. To quote from the summary on the search engine results page: “Given the private nature for chats within communities, WhatsApp will continue to protect messages with end-to-end encryption so that only the members of the respective groups can see them, and no one else.”
URL (About WhatsApp): https://en.wikipedia.org/wiki/WhatsApp
From more information: URL: https://faq.whatsapp.com/458610306367976
Insofar as the case, Geeabee commented upon: The two former police officers Jonathon Cobban and Joel Borders were sentenced in November 2022 to 3 months imprisonment for a very similar offence. The comments of the District Judge Sarah Turnock are revealing. From the ITV webpage (edited):
“When delivering her verdict, Judge Sarah Turnock said the messages they shared within “a small circle of trust” were “starkly at odds” with how they presented themselves to the outside world. She said that this “strengthened the conclusion” that the officers knew that they “would have caused gross offence to members of the public”. The WhatsApp group in which these messages were posted appears therefore to have been viewed by the defendants as a safe space, involving a small number of like-minded individuals, in which they had free reign to share controversial and deeply offensive messages without fear of retribution,” she went on to state that Mr Cobban and Mr Borders had shown no “genuine remorse” but were “indignant” to find themselves before the court and felt they were being “scapegoated”.
NB: Mr Cobban and Mr Borders have lodged an appeal to the High Court. I do not know whether they are appealing the sentence, the verdict or both. They are on bail awaiting the appeal.
If I was to hazard a guess, I think their counsel will be appealing the sentence on the basis of severity (lack of previous convictions) and the verdict on the basis that the communications were private and not public and therefore not an offence under the Act.
IMHO, if their appeal against the verdict fails the best they could reasonably hope for (given the apparent grossly offensive nature of their communications) in terms of a reduced sentence would be for the senior judge to suspend the 3 months custody in whole. A partial suspension might be more likely meaning approx 6 weeks custody which would mean they serve 3 weeks. NB #1: Suspended sentences now carry an automatic Community Service element. NB #2: Keeping former police officers safe when in prison takes up a lot of scarce resources.
NB: At “the end of the day” these two cases are about the Freedom of Speech in 21st Century Britain.