I think it's important to stress to the DPP that it is rarely in the public interest to prosecute a s127 when the message was not sent directly to a person (or with that in mind). It is only with the enactment of the Communications Act 2003 that this has become possible. If it can be shown that in spite of failing to address a message, the sender fully intended for it to reach a person who is likely to have the reaction that this law is seeking to prevent, then perhaps that would be appropriate. However, this should be extremely rare. It is simply too chilling otherwise.
Article 10.2 requires that "the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14)". It can scarcely be ignored that in the landmark case of Chambers v DPP beginning with R v Chambers, two lower courts failed to apply the law correctly. The appeal to the High Court resulted in a split decision. Two senior justices were unable to decide how the law should be applied in that case. It required the Lord Chief Justice to bring the courts in line with what most of the public knew already. This law is not sufficiently precise when applied to writings that are broadcast to the world at large.
Although Daniel Thomas was not charged with an offence for his homophobic tweet in relation to members of the British diving team, he was still arrested and the case was referred to the CPS. The text of that tweet is “If there is any consolation for finishing fourth at least Daley and Waterfield can go and bum each other #teamHIV”. That anyone ever thought this should be caught by s127 is itself cause for concern. This is nowhere near grossly offensive even subjectively.
We have had an Asian man (Azhar Ahmed of Ravensthorpe, W Yorkshire) charged and convicted for a purely political expression. He is to be sentenced on the same day as this round table discussion takes place. We have seen a man arrested (and possibly charged) over a Facebook page that mocks the deaths in the line of duty of two police officers in Greater Manchester. This is a web page. A web page is not a letter. It is not sent to anyone. There seem to be many thousands of similar web pages that could be captured if the offence is to be interpreted that way.
Yesterday we were informed about a man who has been charged and stands before magistrates' court today over a Facebook update that makes a sick joke out of the murder investigation into the missing 5 year old girl April Jones. As LCJ remarked in Chambers v DPP (para 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.
Yet we are still criminalising rude comment about serious matters when distasteful and painful to those subjected to it. It is not necessary or even desirable in a democratic society to prohibit the causing of gross offence to unknown individuals simply as a result of recklessness. This is no different to laws prohibiting blasphemy. The other offences captured by s127 are similar in this respect. It cannot be in the public interest to convict someone over a speech instance that someone happened to come across and feel injured. The potential injury through disruptive arrests and prosecutions to other members of the public by the application of such a low threshold is much greater.