Another section 127. This time "grossly offensive" for insulting troops

I told you about the case of Azhar Ahmed, who was arrested and charged with unspecified "racially aggravated public order offences" for a posting on Facebook that expressed the wild opinion that "All soldiers should DIE & go to HELL! THE LOWLIFE FOKKIN SCUM!", among others less relevant. There seemed to be little basis for a public order offence, much less one racially aggravated.

Yesterday (20th March), Ahmed appeared at Dewsbury magistrates court to enter a plea of not guilty, whereupon it was revealed that the charge had been replaced with a lesser offence of sending a grossly offensive communication contrary to section 127.1(a) of the Communications Act 2003.

This statute has been making the rounds since it was first applied to an internet communication in early 2010 for a Twitter update created by Paul Chambers, then of Doncaster in South Yorkshire. It has become the catch-all when authorities take a dim view of some tweet or Facebook status but are not satisfied that there is sufficient evidence to press for a more appropriate charge.

My friend Matt Bradley attended the hearing yesterday and reported on it here. It seems there was very nearly a full scale riot as ex-soldiers and members of nationalist groups such as the EDL gathered outside the court building carrying signs and chanting. Matt's post is unsurprisingly unflattering towards these groups of people, and at the end he muses "Is there such a thing as a racially aggravated prosecution which endangers public order? Because if there is, that's what the CPS are guilty of here."

His remarks earned him a menacing telephone call from someone threatening to publish his address to the EDL. The police were investigating at the time of writing. You'll notice from the photo on that Yorkshire Post article linked to above that someone is carrying a sign which reads "JAIL THOSE WHO INSULT OUR TROOPS". It is ironic that the failure of the police to protect one person's right to make offensive political speech resulted in their being called upon to defend the speech of another against this backlash.

Returning to the case, section 127 of the Communications Act has many problems in the internet age. Adam Banks, editor in chief of MacUser magazine, probably said it best yesterday with his comment "The Communications Act in the age of social media is like the dinosaurs from Jurassic Park in San Diego".

Section 127 was designed to deal with nuisance telephone calls where there is a directed action from one individual towards another. It is in no way equipped to deal properly with communications that are posted on a bulletin board style system where individuals unknown to the author actively subscribe and otherwise seek out messages of their own volition. If you want to know why section 127 is so worrisome, I invite you to read this first and then follow up with the elaborations below.

I would like to point out a couple of particular problem areas that this case reveals. There is currently one case law precedent for the relevant statute to which subsequent cases have referred. In 2006, the House of Lords decided the final appeal of DPP v Collins in favour of the Director of Public Prosecutions in a case where racially offensive language had been used in telephone calls and voice messages made by a Mr Collins to the Westminster offices of his MP, Mr David Taylor. The judgement in that case sets out the tests for the actus reus (guilty act) and the mens rea (guilty mind) necessary to convict on this charge.

DPP v Collins gets us into trouble here with the actus reus because the judgement sets out that "it is for the Justices to determine as a question of fact whether a message is grossly offensive, that in making this determination the Justices must apply the standards of an open and just multi-racial society, and that the words must be judged taking account of their context and all relevant circumstances." Furthermore, the test is that a "message is couched in terms liable to cause gross offence to those to whom it relates."

Now, to the bereaved families of soldiers recently killed in action, Ahmed's remarks would certainly be extremely offensive and hurtful. However, he certainly did not address his remarks directly to such people despite the use of the second person style of speech. I doubt he would have made those remarks if he'd had a Facebook friend who'd lost a relative in a war.

Collins also gets us into trouble with intent (mens rea). "A culpable state of mind will ordinarily be found where a message is couched in terms showing an intention to insult those to whom the message relates or giving rise to the inference that a risk of doing so must have been recognised by the sender."

Now, again, he certainly must have known his words would be offensive (possibly grossly offensive) to a certain subset of people, which would arguably be the persons to whom the message relates. But he did not reach out to these people as intended recipients. Any persons to whom this message relates in that sense would have been directed to the message as secondary readers.

Basically, it's open season on anything that any group of people doesn't like. It will nearly always be possible to find a handful of people who will be prepared to testify that something someone has written is regarded as grossly offensive (or menacing, or indecent, or obscene) to them, whether or not the author ever imagined that such people would read it. Apparently the prosecution have found six, and a trial date is set for 3rd July. Must the defence call the remainder of society to the stand?

This is what it has come to, and it is frankly terrifying.