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Artillery Row

Grossly offensive censorship

A new ruling offers hope for an end to preposterous rulings over “malicious communications”

In a ruling that has significant implications for freedom of expression around contentious political issues in the UK, the Court of Appeal has quashed the conviction of a man found guilty under the Malicious Communications Act 1988 of sending a “grossly offensive” email to local councillors during a political dispute. 

In R v Thomas Casserly [2024] EWCA Crim 25, the Court of Appeal makes clear that in cases where freedom of speech in a political context is engaged, the threshold at which communication may be regarded as “grossly offensive” is set “very high”, and a court must always make a bespoke assessment of the proportionality of a conviction given the particular circumstances involved. 

Relatedly, the ruling clarifies that whether political communication is “grossly offensive” is a question of fact, and must be determined not by its purported effect on a claimant, but with reference to the content of the communication, and the context in which it is delivered. 

In addition, the court provides detailed guidance on the direction that juries must be given as to the importance of free speech “in a free and democratic society”, and the “special need for tolerance” on the part of those in public positions, who must be expected “to have a thicker skin than those who are ordinary citizens”.

The backstory here is that in May 2022, the appellant, Thomas Casserly, from Middlewich in Cheshire, 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 section 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.

The complainant, Victoria Dominguez-Perez, is an elected town councillor. Cllr Dominguez-Perez is profoundly deaf, visually impaired, and has a muscle-wasting condition. She also has a guide dog, hearing aids and sometimes uses a wheelchair. 

On 1 June 2020, Casserly sent an email to the Middlewich Town Councillor Mike Hunter, copying in other Town Councillors including Cllr Dominguez-Perez. The email had the subject line “Re: Middlewich Cemetery: very serious public concerns”, and raised concerns about the running of Middlewich Cemetery Board. Cllr Dominguez-Perez replied directly, asking “to see evidence and proof”. Two days later, Casserly responded with an email that contained the following paragraph: 

Middlewich has many problems which need addressing and the residents are looking to the councillors to have the knowledge, understanding and intelligence to improve the town for all residents. Therefore, how does a councillor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?

Cllr Dominguez-Perez did not reply but forwarded the email to the police for investigation.

Two months later, Casserly was contacted by the police, and attended voluntarily at Sandbach police station for an interview under caution. He admitted sending the email and told officers he thought it appropriate for Town Councillors to explain their disabilities and to identify the reasonable adjustments that they required. 

“Clearly Vicky has disabilities,” he said. “Is she able to do the job? It isn’t just because she has a disability. David Blunkett was blind, but he was the Home Secretary and was able to do the job. I think it’s important to be able to hold people in public office to account. I can understand what I said made her cry, but my intention was not to put her on the spot. I was questioning her suitability to do the role. Councillors are in a position of responsibility which comes with a degree of accountability.”

Casserly, representing himself at Chester Crown Court, submitted to the judge that the jury should be directed in such a way as to ensure that when deciding whether the email was “grossly offensive” they took due account of the public role which Cllr Dominguez-Perez had taken on, and his own free speech rights. 

The judge, however, didn’t consider it necessary to give the jury direction to consider that wider context. In a move that the Court of Appeal would later criticise, he invited the jury instead to consider the sentence that asked “… how does a councillor with limited reading ability … feel they can make a difference?”, and to find that the view expressed in that sentence was grossly offensive, and that in sending it the appellant had intended to cause distress or anxiety to the complainant and/or to other recipients of the email.

Having been so directed, the jury returned their unanimous verdict against Casserly in a little over an hour, finding him guilty of sending the email with the intent of causing Cllr Victoria Dominguez-Perez alarm and distress.

During his subsequent appeal, Casserly instructed Mr Friedman KC, who submitted that the trial judge’s legal directions were inadequate because they failed to take due account of the common law right to free speech, or the corresponding Article 10 ECHR right to freedom of expression. Emphasising that the email was political in context and in content, Mr Friedman KC referred to a range of other authorities concerning the importance of political speech, and the narrow circumstances in which it can properly be the subject of interference. 

The respondent’s counter position was that the email fell outside the scope of Article 10 because it was purely offensive and insulting.

The court disagreed with the respondent’s claim, observing that the email could not properly be treated as meaningless communication that contained nothing other than abuse, since it was sent to Cllr Dominguez-Perez under the subject line “RE: Middlewich Cemetery: Very serious public concerns”, and in her capacity as Town Councillor. The court also noted that it was copied to other Town Councillors, similarly in that capacity, referred to events at a November 2019 Town Council meeting, alluded to the “many problems” which Middlewich was said to have, and to the fact that residents were looking to the Town Councillors to have the capacity to “improve the town for all residents”. 

The fact that the email contained passages that could easily be considered insulting, upsetting and offensive, was not something the court considered to be of significance. “The law does not require courtesy,” it said dismissively, adding: “It is trite law that speech does not lose protection just because the information or ideas are offensive, disturbing or shocking.

Having determined that Casserly’s email was political in nature, the court then acknowledged that the right to freedom of speech is qualified, and that there may be circumstances in which political communication can be restricted or, in the language of the ECHR, “interfered with by the state”. 

Was R v Thomas Casserly one such case?

The court thought it could have been, but was concerned that the trial judge’s directions to the jury unfairly downplayed the weight afforded to political speech in a free and democratic society. This was problematic, the court said, because in such a society political speech is to be given particular weight, and Strasbourg jurisprudence — which UK courts are still required to “take into account” — identifies “a hierarchy of speech, with political speech at its apex”. Evaluation of the wider context surrounding Casserly’s email was therefore all the more crucial, since “[t]he greater the value of the speech in question, the weightier must be the justification for interference”. 

Relatedly, the court pointed to the fact that the meaning of “grossly offensive” is not defined in section 1 of the Malicious Communications Act, either generally or specifically in circumstances where the right to freedom of speech is engaged. In cases where allegedly “grossly offensive” political speech is at stake, it is therefore crucial to interpret the statute so as to allow for an assessment of the proportionality of a conviction in the circumstances of individual cases.

In other words, the original trial judge had been “wrong”, as the court puts it, to proceed on the basis that Casserly’s case did not require a proportionality assessment. (Remarkably, and as the court ruling concedes at para. 53, Casserly, representing himself during the original trial, had in fact argued for the correct approach!).

That the threshold for prosecution of political communication is “very high” is further confirmed when the court turns to consider the meaning of the words “purpose” and “intent” as they appear in section 1 of the Malicious Communications Act, which can be glossed here as follows:

  • Any person who sends to another person – 
  • any article or electronic communication which is, in whole or in part, of an indecent or grossly offensive nature,

is guilty of an offence if his purpose, or one of his purposes, in sending it is that it should… cause distress or anxiety to the recipient or to any other person to whom he intends that it or its contents or nature should be communicated.

It is, the court says, a question of fact as to whether a message is “grossly offensive”, and one that should be answered objectively by reference to the message’s contents and context, not its alleged effect on an individual. In a case like Casserly’s, then, it is not enough for the prosecution simply to prove, and for the jury to accept, that a defendant’s message is likely to cause distress or anxiety, and that the defendant “intended” this — the prosecution must also prove that it is the defendant’s ‘purpose’ to bring about this consequence, whereby the word “purpose” means “a motivating objective”. 

Citing the 1985 Law Commission Report, the court makes clear that this distinction between intention and purpose is crucial when determining if political speech is “grossly offensive”, since in a liberal democracy it may sometimes be legitimate for a person to ‘intend’ to cause another person distress or anxiety. As the court explains: “Criminal liability was not intended to arise in situations where it is necessary to communicate to others information which is shocking or even menacing and, as the sender knows, will inevitably cause distress.”

Ultimately, the court concludes that Casserly’s conviction was unsafe, not because his prosecution was unlawful but because the instructions given to the jury “fell materially short of what was required” in order to “safeguard the appellant’s right to free speech”. 

Having made this point, the ruling proceeds to reel off a remarkable list of what can only be described as “guidelines” regarding how the jury in Casserly’s case should have been directed in order to safeguard his right of free speech.

Specifically, the jury should have been directed that: (a) “the law protects freedom of speech because it is part of living in a free and democratic society”; (b) whether communication is so grossly offensive that it amounts to a criminal offence and loses the protection of freedom of speech depends not on the hurt feelings of the complainant, but on the communication’s “content, the context in which it was sent, and the purpose(s) of the sender”; (c) “holding politicians to account is an important part of a democratic society”; (d) “when people are expressing themselves in a political context the law expects those who receive the communications to have a thicker skin than those who are ordinary citizens”; (e) “the use of strong language, even that which is offensive, shocking or extremely rude, may not be enough to amount to the offence charged”; and (e) it is not enough for the prosecution simply to prove that the defendant’s political communication had the effect of causing a recipient distress or anxiety, because the jury must also be sure that at least part of the defendant’s objective(s) in sending that communication was to cause distress or anxiety.

That this list can be described as “remarkable” is because it pushes back against the recent trend — common among woke activists who have read but in significant ways misunderstood Judith Butler’s work on the political performativity of language — for treating words and phrases as if they carry an innate threat, effortlessly “wounding” their recipients irrespective of the context in which they are uttered.

It’s true that in the recent employment tribunal case of Mr C Borg-Neal v Lloyds Banking Group plc the panel sought to check the slow creep of this paranoiac approach to language in our institutions — as per its ruling, although any given word will have an accepted dictionary definition, HR departments wishing to ascribe certain meanings to allegedly ‘offensive’ utterances must first consider a host of other, contextually relevant factors, including the speaker’s objectives, intentions, tone, style of delivery, and the specifics of the setting.

But of course the Employment Tribunal is “just” a first-tier court, and does not — indeed, cannot — set legal precedents for the future. What’s so significant about R v Thomas Casserly is that the hearing took place at the Court of Appeal; that is, the highest court within the Senior Courts of England and Wales. As such, this ruling will undoubtedly provide defendants in subsequent cases — the Casserlys of tomorrow — with a recent authority to rely on for the proposition that juries must be directed to consider the effect(s) of an allegedly “grossly offensive” form of political speech not in isolation, but as part of the wider context of life as it is lived within a pluralist, rambunctious, rowdy, tumultuous, liberal democracy. 

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