The criminal law of England and Wales is a vast and rambling country house, the work of many owners and diverse enthusiasms. The oldest parts have stood so long that they are said to always have been there and never to have needed building. You cannot point for instance to the parliament that passed a law against murder, because no parliament ever did. It was a crime before parliament emerged.

But the house is anything but devoid of structural modifications and additions, from the Treason Act of 1351 onwards. Owner after owner has added wings and porticos, each shaped by the concerns of the day and built according to prevailing fashion. As a new staircase is added here, an old one falls into disuse there, or is forcibly pulled down. It would be difficult now to say how many rooms the building has. 

The same conversation face to face would not amount to an offence

Unsurprisingly, this state of affairs is offensive to a certain sort of systematic mind. In 1989 the Law Commission produced a draft criminal code, a Code Pénal for England and Wales — a single statement of that which the state deemed worthy of punishment. It never became law, of course.

One of the many modern additions to the pile is section 127(1) and (3) of the Communication Act 2003 — sending a message “by means of a public electronic communications network” that is grossly offensive. 

It is an interesting offence. You might think that it criminalised sending someone a message which the recipient found grossly offensive, but in fact it criminalises sending a message that would be grossly offensive to the subject of the message. As Lord Brown of Eaton-under-Heywood pointed out in the 2006 case of Collins, two racists making grossly offensive racist remarks to each other in the course of a telephone conversation would commit the offence, because even if neither of them found what was said offensive, those they were demeaning would. The same conversation face to face and in private, would not, however, amount to an offence. 

The purpose of the offence, Lord Bingham held in Collins, was “to prohibit the use of a service provided and funded by the public for the benefit of the public for the transmission of communications which contravene the basic standards of our society”.

The offence has not fallen into disuse. Take the case in June this year of James Watts, then a probationary constable, who posted racist memes to a private WhatsApp group of which he was a member. Some were general — a white dog dressed as a member of the Klu Klux Klan, for instance — but others mocked George Floyd’s death. Or take that of Paul Bussetti, who posted a video of a model of Grenfell Tower burning on a Guy Fawkes bonfire whilst racist remarks were made. Both were convicted of the offence, Watts receiving a prison sentence of 20 weeks and Bussetti a suspended prison sentence.

Such behaviour is inherently repugnant, of course. Understandably, though, it was the harm it did to others that concerned the deputy chief magistrate when he sentenced Mr Watts. Because he was a constable, his behaviour had undermined public confidence in the police, and the hostility he had demonstrated on the basis of race made the offence so serious that it could only be dealt with by an immediate sentence of imprisonment. Only that would send out the required message, the court held.

If you struggle with the logic of this, you are not alone

If the reports give a fair account of the proceedings, the worst of Mr Watts’ offending in the court’s view was its public effect, and it is not difficult to understand its thinking. But here’s a strange thing — he was sentenced for sending private messages. Indeed it can fairly be presumed that he never wished the messages to become public, given the consequences for his employment, not to say liberty. The publicity given to the messages appears to have been a function of the criminal proceedings themselves. 

Besides, it wasn’t the messages by themselves that constituted the offence, but sending them using an electronic system. How much sense does this distinction now make? We no longer communicate on telephones operated by the GPO. The character of a WhatsApp group is private. What is the moral difference between expressing vile sentiments face to face, and sending them via WhatsApp using a network the writer pays to access?

If you struggle with the logic of this, you are not alone. On 11 May 2022 Nadine Dorries introduced the Online Safety Bill to the House of Commons. It would abolish the offence and replace it with one of harmful communication. To achieve a conviction the prosecution would need to prove that at the time the message was sent, there was a “real and substantial” risk that it would harm the likely audience of the message and that the defendant intended to cause that harm. 

The bill in this regard closely follows a Law Commission recommendation. If the Online Safety Bill passes without the relevant clauses being amended, the section by which both Mr Watts and Mr Bussetti were convicted will disappear from the statute book. Based on what reports tell us of their cases, it seems unlikely that either of them would have been convicted under the new law.

The facts do not lend themselves to a simple narrative. One narrative people might tell themselves would be of a move away from keeping the Queen’s peace and investigating crimes against the person and property, and towards a concern with hateful messages. Maybe there is truth in it. But it has to contend with the ongoing repeal of a section useful for catching just such messages. Others might tell a different story and suggest that Nadine Dorries was part of an administration trying to reverse the alleged trend in policing. But she is simply asking parliament to implement the Law Commission’s recommendation. 

There is, I strongly suspect, no masterplan, any more than there was a masterplan for building the edifice of English and Welsh criminal law as a whole. The true moral of the story is maybe this: that the endless offences and rich anomalies to be found in this dust-ridden old pile make public debate of the underlying issues all but impossible. Who, other than the Law Commission, is talking of these sections and the degree to which the criminal law should regulate hateful private messages? Who knew that what was lawfully said face to face might be a criminal offence if sent via WhatsApp? Almost no one, and it surely cannot help that for most people the law is simply inaccessible.