Malicious communications and the right to freedom of expression

An appellant has successfully overturned his conviction of a single count under the Malicious Communications Act 1988 over an email he sent to his town councillor. Chantel Gaber and Dominic Thomas analyse the Court of Appeal’s ruling.

On 16 May 2022, in the Crown Court at Chester, the appellant, Thomas Casserly, was convicted after trial of a single count of "sending an indecent or grossly offensive electronic communication with intent to cause distress or anxiety contrary to s 1(1)(b) of the Malicious Communications Act 1988". He was later sentenced to a community order with requirements for 50 hours of unpaid work and a 10-day rehabilitation activity. A five-year restraining order was also imposed, restricting his freedom to contact the complainant. He appealed against conviction with leave. 

The complainant was an elected town councillor. The prosecution was based on the contents of an email sent to her by the appellant, one of her constituents, in which he challenged her ability to perform her public role. The appellant maintained that his communication was a legitimate expression of his opinion and that he was entitled to express his concerns in accordance with Article 10 of the European Convention of Human Rights (Article 10) (the Convention). 

Judgment

The appeal was allowed in Rex v Thomas Casserly [2024] EWCA Crim 25 and his conviction quashed. Practitioners will find the met of the judgment at paragraphs 48-49, distilled below:

1. Whether a message is "grossly offensive" is a question of fact to be answered objectively by reference to its contents and context, not its actual effect; 
2. The question is whether the message goes beyond the limits of what is tolerable in our society;
3. The answer must reflect society's fundamental values. Those values include the great weight to be given to free speech, the need for tolerance of statements and opinions that some might find offensive or upsetting, and the special need for tolerance on the part of those in public positions; 
4. The context of the speech must be considered. In a democratic society political speech is to be given particular weight. The Strasbourg jurisprudence identifies a hierarchy of speech, with political speech at its apex. The greater the value of the speech in question, the weightier must be the justification for interference. The proportionality assessment must include some evaluation of the kind of speech under consideration; 
5. Accordingly, where freedom of speech in a political context is engaged, and there is a case to answer, it is essential that the offence be defined in terms which reflect the enhanced meaning of "grossly offensive";
6. In order to establish that at least one of the defendant's purposes was to cause distress or anxiety, it is not enough for the prosecution to prove that the message was likely to have that effect and that the defendant knew or foresaw this, or that he gave no thought to the matter; the prosecution must prove that at least one of the defendant's “purposes” was to bring about that consequence. 

These considerations may lead to the conclusion that a prosecution cannot be justified. As the CPS Guidelines state, "prosecutors should only proceed with cases under section 1 [of the 1988 Act] … where the interference with freedom of expression is necessary and is proportionate." There must be sufficient evidence that the communication in question, in its particular context, is "more than offensive, shocking or disturbing" and goes "beyond the pale of what is tolerable in society". 

Key takeaways

Challenge whether the prosecution can be justified by the CPS guidelines.

Directions will always need to be tailored to the specific facts of the case. The relevance of Article 10 should be reflected fairly in the consideration of whether or not a communication is "grossly offensive", and that the relevant state of mind as to “purposes” must be properly identified. There should be proper directions on both limbs of the offence. 

There should be direction on the importance of free speech as a fundamental value in society and the need for special tolerance when it comes to speech on political issues; on the need for public figures to have particular tolerance.

Without aiming to dictate in what precise terms the jury should have been directed, the Court of Appeal gave an example of the directions they would have expected to be tailored to this case which practitioners will find a useful template.

Chantel Gaber and Dominic Thomas are barristers at 25 Bedford Row.