At last, some sanity. The High Court has recently delivered some very welcome corrective against the widespread movement to elevate protecting individuals from emotional distress above protecting the fundamental rights of all to freedom of expression. 

Scottow v the CPS [2020] EWHC 3421 (Admin) was handed down on 16 December 2020. 

This was an appeal against Ms Scottow’s conviction on 7 February 2020 for one offence of improper use of a public communications network, contrary to section 127(2)(c) of the Communications Act 2003. This provides that a person commits an offence if, “for the purpose of causing annoyance, inconvenience or needless anxiety to another [she] … persistently makes use of a public electronic network”.

The appeal examined various procedural issues, such as what was meant by ‘persistently’ and whether communications made in 2018, then later in 2019 could properly be called a course of conduct.

But of wider importance is the court’s clear analysis and ruling upon the importance of freedom of speech. There is no doubt that Ms Scottow had been insulting, sending a variety of messages suggesting that Ms Hayden was racist, xenophobic, bullying, dishonest, fraudulent and, most memorably, a ‘pig in a wig’. 

The first court lamented Ms Scottow’s lack of ‘kindness’ saying: 

We teach our children to be kind to each other and not to call each other names in the playground and there is no reason why, simply because some thing is on social media, we should not follow that rule as adults and think about what is being written before sending messages, and not send ‘stupid throw away comments’…

It is interesting to speculate if such comments would have been made to a male defendant about his lack of ‘kindness’. Regardless, the High Court was unimpressed by this analysis, describing it as ‘an unstructured approach that lacks the appropriate rigour.’ Interference with freedom of expression may only be justified if it is prescribed by law, pursues one or more of the legitimate aims identified in Article 10(2), and is shown convincingly to be “necessary in a democratic society”. The court must consider whether the interference complained of corresponds to a pressing social need, is proportionate to the legitimate aim pursued, and is supported by reasons which are relevant and sufficient.

The High Court was clear that publishing ‘annoying tweets’ was not an offence under s127(2)(c) and that Ms Scottow’s conviction should be quashed. This appeal was a stern reminder for the criminal justice system to have proper regard to freedom of speech. 

And this reminder is very timely. The Law Commission is currently keen to expand the ambit of ‘hate crime’ and has proposed reform of communications offences.

Stonewall may be wounded but it remains enormously influential, especially in the chilling effect it exerts on free speech

The latter was, until 18  December, consulting on proposals to improve the protection afforded to victims by the criminal law, while also strengthening safeguards for freedom of expression. Whether it will succeed in reconciling these tensions is as yet unclear, but it seems doubtful given the primacy offered to ‘emotional distress’ as a deciding element of a new criminal offence. 

We hope the High Court in Scottow reminds them, along with the judgment in Harry Miller’s appeal against the College of Policing in the New Year, that the subjective distress of an alleged victim may not overwhelm the fundamental right of freedom of expression, without rigorous analysis as to why this is necessary. 

Particularly in the area of ‘trans rights’, efforts continue to be made to shut down legitimate debate and discussion on the basis that it is ‘offensive’ or upsetting to those who don’t agree.

Ofcom chief executive Melanie Dawes appeared before parliament’s Digital, Culture, Media and Sport Committee on Tuesday 15 December 2020. When asked about the BBC’s current editorial practice of requiring critical voices in all discussions relating to transgender people, she responded that it was ‘extremely inappropriate’ for broadcasters to seek to ‘balance’ appearances by transgender people with ‘activists’ from anti trans pressure groups. But who exactly is such a hateful ‘activist’? Tory MP Damian Green had to point out that current definitions risked including women like JK Rowling. 

Ms Dawes’ understanding of what makes an unacceptably hateful ‘anti trans pressure group’ is no doubt influenced by Ofcom signing up to the Stonewall ‘Trans Allies’ programme – along with the House of Commons.  

Stonewall may be wounded but it remains enormously influential, especially in the chilling effect it exerts on free speech and open debate. But this debate is necessary and urgent: we must be able to discuss these legitimate concerns without fearing that we are going to attract the attention of the criminal justice system. 

We look forward to Harry Miller’s hearing  in the Court of Appeal in March where he will challenging the refusal of Mr Justice Knowles to declare the Hate Crimes Guidance unlawful as an unjustified fetter on his freedom of speech. I hope to make my own challenge to this guidance in January. 

Given that over 120,000 ‘hate incidents’ have been recorded since 2015, I suggest it is very unlikely that Mr Miller and I are the only people the police have recorded for exercising their Article 10 rights to protected political speech. This has very serious implications, not merely for individuals who are shocked and distressed to find themselves falsely branded ‘hatemongers’, but also for our trust in State institutions, and the continuing health of our democracy and the rule of law.

That the High Court felt it necessary in Scottow v CPS to reaffirm what should by now be a well-worn (trite, even) point law is an indication of just how dangerously untethered public discourse — and even proposed new laws — have become from these fundamental principles. The test for whether or not we are allowed to speak cannot be based on whether it causes offence or upset to any particular group. Being offended and feeling upset are part of life. They cannot be a reason to fetter the fundamental human right of freedom of expression without very clear focus and analysis on what pressing social need this serves.