Director of Public Prosecutions v Smith [2017] EWHC 359 (Admin)

[2017] EWHC 359 (Admin)

Case No CO/6265/2016

IN THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date 24 February 2017

Before

LORD JUSTICE IRWIN

MR JUSTICE SWEENEY

Between

Director of Public ProsecutionsAppellant

Kingsley Anthony SmithRespondent

John McGuinness QC and Benjamin Douglas-Jones

(instructed by The Crown Prosecution Service) for Appellant

Alesdair King of Usmani King Solicitors for Respondent

Hearing Hearing date : 17 February 2017

Judgment Approved

Introduction

[1]This is an appeal by way of Case Stated against a decision of District Judge (Magistrates Courts) Leigh-Smith who, on 1 September 2016 in the Luton Magistrates’ Court, acquitted the Respondent (who is now aged 19) of four offences alleged to have been committed in June 2015, each of sending by means of a public electronic communications network a message or other matter that was grossly offensive or of a menacing character, contrary to s.127 (1)(a) of the Communications Act 2003 (“the 2003 Act”).

[2]In each instance the alleged offence was concerned with the posting by the Respondent on the internet of a message attached to a YouTube video.

[3]The question for the opinion of the court is: Was the District Judge right to find that the threats contained within the Respondent’s posts were not menacing or grossly offensive?

The law

[4]Section 127 of the 2003 Act provides, in so far as relevant, that:

“(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…… (b) a person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding 6 months, or for a fine not exceeding level 5 on the standard scale or to both.” (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…… (b) a person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding 6 months, or for a fine not exceeding level 5 on the standard scale or to both.”

[5]The leading authorities on s.127(1)(a) are DPP v Collins

[2006] 1WLR 2223

(“Collins”) in which the House of Lords was concerned with grossly offensive messages, and Chambers v DPP

[2013] 1WLR 1833

(“Chambers”) in which this court, presided over by Lord Judge LCJ, was concerned with a message said to be of a menacing character. The broad effect of those authorities was summarised by Cranston J at [16]-[18] of his judgment, with which Laws LJ agreed, in Karsten v Wood Green Crown Court

[2014] EWHC 2900

Admin (“Karsten”) in which this court was concerned with both types of message.

[6]It is clear that, ultimately, whether a message is grossly offensive or of a menacing character is an objective question of fact. I shall, however, return to the law in more detail below when dealing with the arguments and the merits.

The Case Stated

[7]In basic accordance with Rule 35.3-(4)(d) of the Criminal Procedure Rules, the Case Stated sets out the findings of fact that are in issue and a summary of the evidence on which the District Judge reached those findings (including summaries of the parts of the four videos that were shown to him, and which give something of their flavour). However, in a case such as this where films are involved and context is important to the validity or otherwise of the decision being appealed, that was plainly insufficient. The footage that the District Judge was shown should have been appended, in viewable form, to the Case Stated so as to enable this court to fully understand the evidence as to the context in which the messages were posted. This must be borne in mind in any future case of this type.

[8]There are other deficiencies in the Case Stated as well. That said it is not, in my view, necessary to send it back for amendment – given that it is possible to discern enough of the District Judge’s approach, and the errors in it, to decide the appeal.

The facts

[9]As recorded in the Case Stated the Respondent, using his Google+ account, posted four messages to a wall for public viewing. Each message was attached to a YouTube video that the Respondent had downloaded to his account. The videos were journalistic works and not of themselves exceptionable.

[10]The four charges were, between them, concerned with events on 22 and 23 July 2015 (when the Respondent was aged 18).

[11]Charge 1 involved a video emanating from an organisation called Vice News which was entitled “London’s Holy Turf War”. It showed the conflict between the extreme right and Islamist extremists in their political activities in London, and included reference to a man called Paul Golding – the leader of a far right wing organisation called “Britain First”. To that the Respondent had attached the message “If I see Paul Golding, I’d slice his throat”.

[12]Charge 2 involved a video called “David Cameron Exposed on Islam”. It showed the then Prime Minister speaking from the pulpit of Oxford Cathedral as to the need for religious tolerance in the United Kingdom. To that the Respondent had attached the message “I’m going to put an IED on your doorstep”.

[13]Charge 3 involved a Vice News video entitled “The Islamic State” which showed the nature of life in the Islamic State, including images of execution by crucifixion and beheading. To that the Respondent had attached the message “Allahu Akbar, kill the Kuffir”.

[14]Charge 4 involved a video entitled “British Military Power” which showed the British Army on exercise, and the nature of its weapons. To that the Respondent had attached the message “One day I will kill the Kuffir, Allahu Akbar”.

[15]The four films attracted a very large number of hits and thousands of comments additional to those of the Respondent. However, there was no evidence that those comments (examples of which were the subject of a formal admission) were direct replies to the Respondent’s messages.

[16]The Respondent was of interest, given his attendance at extremist Islamic fundraising events, to the Eastern Counties Terrorism Unit. In late July 2015 an online search for the Respondent by the Unit led to a video that he had posted on YouTube describing his return to Islam and, via a link in that video, to his Google+ account and thus to the four videos and messages.

[17]They were reported by the Unit to the Anti-Terrorist Branch of the Metropolitan Police for action to be taken. However, in the event, because of the need to prioritise other work, no action was taken until 18 January 2016 – when the Respondent was arrested. Thereafter, the CPS concluded that no terrorism offence was involved, and the case was sent to the local CPS who then prosecuted for the instant offences.

[18]The police received no public complaint about the Respondent’s messages. Neither Mr Golding nor Mr Cameron had contacted the police, nor did the police contact them. The police had not sought to have Google take the comments down (albeit explaining that it was difficult to do so), and nor was there any evidence that the comments made by others had led to any prosecutions.

[19]As summarised in the Case Stated, the prosecution called Acting Police Sergeant Johnson – who dealt with the intelligence background as to the Respondent’s attendance at extremist Islamist fundraising events, and the discovery of the YouTube video which led to the discovery of the Respondent’s Google+ account and thus to the four videos and messages. The officer described the contents of the four videos and the District Judge was shown a substantial portion of “London’s Holy War”, a smaller portion of “David Cameron Exposed on Islam” and very short excerpts from “The Islamic State” and “British Military Power”.

[20]Detective Constable Montgomery was also called by the prosecution. He dealt with the fact that he was responsible for the case after its transfer to the Metropolitan Police; that he had received the relevant reports in August and September 2015; and that he had had to prioritise other work, and thus had not arrested the Respondent until 18 January 2016.

[21]As already touched on, there was a formal admission as to the very large number of people who had looked at the videos and that thousands of them had responded with messages of their own – examples of which (many of them grossly offensive or of a menacing character) were given in the admission. DC Montgomery stated that he was not aware of anyone having been prosecuted for any of the messages posted, save for the Respondent; that he was not aware of any complaints resulting from the Respondent’s four messages; and that those messages had only been found by police hard work. He said that he did not know whether any of the posts were still online, but that taking down things that were posted was very difficult. He said that he had, however, taken the threat to Mr Golding very seriously.

[22]The factual basis of the prosecution case was not substantially disputed by the Respondent (who, we were informed by the parties, did not give evidence).

[23]The District Judge heard arguments from both sides, during the course of which he was referred to both Collins and Chambers. The prosecution contended that the messages were either grossly offensive or of a menacing character.

[24]In the result, the District Judge found that:(1) The Respondent had posted each of the messages as alleged.

(2) The four films had attracted a large number of hits and comments additional to those of the Respondent (of which the court had examples), but there was no evidence that those comments were direct replies to those posted by the Respondent.

(3) The police had received no public complaints but found the matters complained of in their usual intelligence gathering role.

(4) Neither Mr Golding nor Mr Cameron had been contacted by the police, nor did they contact the police regarding the Respondent’s messages.

(5) The police had not sought to have Google+ take the Respondent’s comments down and were not aware of any other prosecutions arising out of any of the comments made by others.

(6) It was not disputed that the Respondent was of interest to the police.

[25]As to the remaining elements of the alleged offences the District

Judge recorded in the Case Stated that:

“I was of the opinion that: 1. The police did not prosecute others for equally offensive messages because of the evidential issues in identifying the authors. It was for the police to consider the practicalities of investigating alleged offences, and within their discretion as to whether they expended resources to investigate or not, and whether they would charge leading to prosecution or not. The decision not to prosecute others in no way inhibited the proper exercise of the police discretion to prosecute the [Respondent]. 2. The failure of the police to have the messages, the subject of the charges, taken down did not preclude the messages from potentially being grossly offensive, indecent, obscene or menacing. It did however evidence the extent of the police concern for the impact of the messages on those seeing them. 3. I looked for assistance in analysing the texts complained of in the analysis undertaken by Lord Judge LCJ at paragraph 31 and 32 of Chambers v The DPP. 3.1 The context was the Respondent’s reaction to watching four news items on YouTube, (1) describing the conflict of radical Islam and the extreme right in Britain, (2) of the then Prime Minister’s plea from the pulpit of Oxford Cathedral for religious tolerance and (3) Articles about ISIS and British Military power. Two postings were specific, regarding Paul Golding and David Cameron. The other two were non-specific. 3.2 Unlike Mr Chambers’ Twitter, the Respondent’s postings were not jokes. They were typical expressions of anger and bigotry heard amongst a very small part of the Muslim community in Luton. 3.3 Their language and punctuation were inconsistent with the writer intending them to be taken as serious warnings of actions he genuinely intended. 3.4 He posted them on Google+ in his own named account. They were easily found. 3.5 I noted the extreme lack of expedition with which the police actioned their discovery of these threats. There was no evidence of any action being taken regarding them, other than in this prosecution. There was no evidence that anyone complained, that anyone was angered or upset, or indeed encouraged to act. 4. I could not find that these messages created menace. They did not create fear or apprehension in those to whom they were communicated. I deprecated their use, but I was satisfied that they represented empty bombast or ridiculous banter. (Per Lord Judge LCJ paragraph 30, Chambers v DPP), and accordingly, I dismissed all the charges.” 3.1 The context was the Respondent’s reaction to watching four news items on YouTube, (1) describing the conflict of radical Islam and the extreme right in Britain, (2) of the then Prime Minister’s plea from the pulpit of Oxford Cathedral for religious tolerance and (3) Articles about ISIS and British Military power. Two postings were specific, regarding Paul Golding and David Cameron. The other two were non-specific. Two postings were specific, regarding Paul Golding and David Cameron. The other two were non-specific. 3.2 Unlike Mr Chambers’ Twitter, the Respondent’s postings were not jokes. They were typical expressions of anger and bigotry heard amongst a very small part of the Muslim community in Luton. 3.3 Their language and punctuation were inconsistent with the writer intending them to be taken as serious warnings of actions he genuinely intended. 3.4 He posted them on Google+ in his own named account. They were easily found. 3.5 I noted the extreme lack of expedition with which the police actioned their discovery of these threats. There was no evidence of any action being taken regarding them, other than in this prosecution. There was no evidence that anyone complained, that anyone was angered or upset, or indeed encouraged to act. 4. I could not find that these messages created menace. They did not create fear or apprehension in those to whom they were communicated. I deprecated their use, but I was satisfied that they represented empty bombast or ridiculous banter. (Per Lord Judge LCJ paragraph 30, Chambers v DPP), and accordingly, I dismissed all the charges.”

The grounds of appeal

[26]The grounds of appeal are that:(1) The posts, the subject matter of the charges, constituted or included, on an objective assessment, messages of a menacing character;

(2) Further or alternatively the posts were, on an objective assessment, messages of a grossly offensive character.

(3) The District Judge led himself into error in his assessment of the character of the messages by taking into account in the way that he did, and/or attaching too much weight to, matters including the following: (a) The “extreme lack of expedition with which the police actioned their discovery of the threats”; (b) “There was no evidence of any action taken regarding the posts other than in their prosecution”; (c) “There was no evidence that anyone complained, that anyone was angered or upset, or indeed encouraged to act”; and (d) “The failure of the police to have the messages, the subject of the charges, taken down did not preclude the messages from potentially being grossly offensive, indecent, obscene, or menacing. It did however evidence the extent of the public concern for the impact of the messages on those seeing them.”

The arguments

[27]Mr John McGuinness QC, on behalf of the Appellant, pointed out that each of the Respondent’s messages involved a death threat, with the first two being directed at individual people.

[28]As to the law, Mr McGuinness argued that:(1) The purpose of s.127(1)(a) of the 2003 Act, as made clear in the speeches of Lord Bingham (at [7]) and Lord Brown (at [27]) in Collins, is to protect the integrity of the public communications system, which is provided and funded by the public for the benefit of the public, by prohibiting the use of the service for the transmission of communications which contravene the basic standards of our society.

(2) The actus reus of the offence consists of three elements, namely: (i) Sending a message. (ii) Of the proscribed character. (iii) By the defined means.

(3) If all three elements are proved, the actus reus is complete at the time of the sending. It makes no difference whether the relevant message is received or read or not, or who (if anyone) actually receives it.

(4) In this case there was no dispute that, when he posted each message, the Respondent had sent it by the defined means. The sole issue in relation to the actus reus on each charge was therefore whether it was proved as a fact that the relevant message was grossly offensive or of a menacing character.

(5) The resolution of that issue required, as made clear in the speeches of Lord Bingham (at [8]) and Lord Carswell (at [22]) in Collins, the application of an objective test, namely whether, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial society, the court was sure that a particular message was grossly offensive to those to whom it related, or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who had received or read it.

(6) Whilst in Chambers the court decided, on the very particular facts of that case, that the application of that objective test does not necessarily exclude from consideration the reaction of, or any effect on, a person who had actually received or read the relevant message, the need for any such consideration was likely to be relatively rare, and the weight to be attached to it was likely to be relatively limited.

(7) The prosecution was then required to prove the requisite mens rea in each instance, namely that: (i) The Respondent intended his message to be grossly offensive to those to whom it related; or that he was aware at the time of sending that it might be taken to be so by a reasonable member of the public who read or saw it; or (ii) The Respondent intended that the message should be of a menacing character; or that he was aware, at the time of posting it, that it might create fear or apprehension in any reasonable member of the public who saw or read it.

[29]Against that background, and by reference to the content of the Case Stated, Mr McGuinness submitted that it was clear the District Judge had erred in four significant respects, namely:(1) He did not, at any stage, identify or apply the critical objective test set out in [28(5)] above.

(2) Instead he inappropriately took into account and/or attached too much weight to the conduct of the police and the absence of any complaint – matters that were of relevance on the particular facts in Chambers, but which had no, or very little, relevance or weight on the facts of this case.

(3) In any event, he recorded no reasoned conclusion at all as to whether or not it was proved that the messages were grossly offensive.

(4) In addition, although reminded by the Appellant that the requisite mens rea involved proof of either the relevant intention or the relevant awareness, he did not record any consideration of awareness at all.

[30]Mr McGuinness submitted that therefore the question posed should be answered in the negative, and the order acquitting the Respondent of the charges should be quashed. He did not suggest that it would be appropriate to substitute verdicts of guilty as, on instructions, he accepted that the Magistrates Court should be afforded the opportunity, among other things, of considering the Respondent’s mens rea, and thus he submitted that the case should be remitted for a re-trial.

[31]On behalf of the Respondent Mr Alesdair King conceded, in argument, that the District Judge:(1) Did not, at any stage, identify or apply the critical objective test in relation to the sole disputed element of the actus reus.

(2) Recorded no reasoned conclusion at all as to whether or not it was proved that the messages were grossly offensive.

(3) As to mens rea, did not record any consideration of awareness at all.

[32]Whilst recognising the likely consequences of those concessions, Mr King submitted that, nevertheless:(1) Although its admissibility was not disputed at trial, the evidence of the Respondent’s association with radical Islamists was evidence of bad character, which was not to do with the facts of the alleged offences, and should not have been admitted. In any event the Respondent’s beliefs, objectionable or otherwise, could not assist as to the objective assessment of the content of the messages.

(2) By reference to Chambers, the District Judge was right to consider the surrounding circumstances when assessing the character of the messages – including the fact that they were posted in the Respondent’s own name; that no identifiable person had found them to be grossly offensive or of a menacing character.

(3) On the entirety of the evidence the District Judge was thus entitled to conclude that he was not satisfied that the messages were either grossly offensive or of a menacing character. Rather, he was entitled to conclude, as he did, that they were no more than empty bombast or ridiculous banter.

The merits

[33]I agree with the submissions of Mr McGuiness (see [28] above) as to the requisite elements of both the actus reus and the mens rea of the offence.

[34]I bear in mind that, in deciding whether a particular message was grossly offensive the court needed (per Laws LJ at [21] in Karsten) to be very careful not to criminalise speech which, however contemptible, was no more than offensive.

[35]To any extent that the resolution of the question posed in the Case Stated turns on the propriety of findings of fact made by the District Judge, who had the advantage of seeing and hearing the evidence, it is necessary to keep in mind the many authorities, including Collins itself, that make clear that factual findings are not to be disturbed at all readily.

[36]That said, the District Judge had first to consider whether the sole element of the actus reus that was in dispute on each charge, namely whether the relevant message was of the proscribed character, was proved. To answer that he had to ask himself whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message was grossly offensive to those to whom it related or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it.

[37]However, it is clear that the District Judge failed to ask himself that question at all, and that nor did he record any reasoned conclusion as to whether or not it was proved that the messages were grossly offensive – when there was, it seems to me, a clear case that they were.

[38]In my view, those errors alone fatally undermine all findings of fact that the District Judge made in relation to the actus reus.

[39]The District Judge also erred, in my view, in inappropriately taking into account, and/or attaching too much weight to, matters that were of relevance on the particular facts of Chambers, but not on the facts of this case.

[40]Chambers was concerned with a “tweet” in jest about blowing up an airport. None of the Appellant’s “Twitter” followers had thought anything of it, no one had reported it, the two gentlemen responsible for the security of the airport had shown no anxiety or urgency in dealing with it, police action had not been hurried, and (after investigation) the police had concluded that the Appellant posed no threat. The court concluded, amongst other things, that the finding in the Magistrates’ Court that the “tweet” was of a menacing character did not address that unbroken pattern of evidence, nor give any weight to the lack of urgency of the response to it. Hence the conviction was quashed.

[41]This case is very different. The messages were clearly not a joke. There was no unbroken pattern of evidence. There was, unsurprisingly, no evidence from anyone who had seen the messages. It was perfectly reasonable for the police to prioritise other cases, and there was evidence that taking down things that were posted online was very difficult. Hence the District Judge inappropriately took into account, and/or attached too much weight to, the matters about which complaint is made.

[42]Logically, consideration of whether the actus reus was proved came first, and if the District Judge was not sure that the disputed element was proved, that was the end of the case and there was no need to consider mens rea. Nevertheless, the Respondent’s intention was considered, but there is no record of any consideration of his awareness – which thus appears to be another error.

[43]There is, however, no merit in the Respondent’s argument that the evidence as to the Respondent’s association with radical Islamists was inadmissible. This is an appeal by way of Case Stated and there was no objection to the admissibility of the evidence at trial. In any event, bad character or not, the evidence had an obvious potential relevance to the consideration of the Respondent’s mens rea.

Conclusion

[44]In my view the Case Stated reveals at least three fundamental respects in which the District Judge erred in his approach to the issues that he had to decide. In those circumstances I would answer the question posed in the Case Stated in the negative, and allow the appeal.

Irwin LJ

[45]I agree. It was for those reasons that, at the conclusion of the hearing, the court announced that appeal was allowed, that the acquittal was quashed, and that the case would be remitted to the Magistrates’ Court for a full retrial before another District Judge or Justices.