The day after the newspapers picked up the story from many months ago that errant tweeters would be sent to prison for two years, another social media prosecution hits the headlines.
On 20th October 2014 Garron Helm (described as having links to an ‘extremist right wing group’) was sent to prison for 4 weeks for sending an anti-semitic tweet to Luciana Berger the MP for Liverpool Waverley.
The prosecution was probably under the Malicious Communications Act 1988 which requires the tweet to have been grossly offensive.
What was said?
One of the most frustrating things about these cases is that the news outlets never report exactly what is said. Sometimes this is understandable, but it would be useful for there to be some indication at least as to why we are paying for people to be prosecuted and imprisoned.
Here, the BBC were less than clear. The Liverpool Echo however, had more detail. It seems that there was a photo “which showed a Holocaust-era star on the MP’s head with the hashtag ‘Hitler was right’. Additionally, “The tweet then called the MP a “communist Jewess” and read: “You can always trust a Jew to show their true colours eventually.”
Ms Berger stated that she was (understandably) ‘deeply shocked’ by the tweet. The Judge said that the offence was racially aggravated (again, perhaps understandably).
What was the sentence?
The Judge would have been guided by the Magistrates’ Court Sentencing Guidelines. The best place to start would be at page 42. Based on the sentence, it would fall in the category of – “Single call where extreme language used and substantial distress or fear caused to receiver“.
Additionally, the surcharge was imposed in the sum of £80. Incidentally, we think that this may have been wrong. This is because the offence was committed on 7th August 2014, which is before the law changed so that someone sent to prison by the Magistrates’ Court could get a surcharge imposed – see here for more details of this.
Why is it a criminal offence?
The CPS have their own guidelines as to when people should be prosecuted for ‘social media’ offences.
This clearly does not fall into the first 3 categories, so it then comes down to an assessment of whether this should be prosecuted in all the circumstances of the case.
It is a difficult one. The tweet is clearly a vile and racist one, and is illegal under the law. However, it is a different question whether a prosecution is compatible with Art 10 and the CPS policy. Whether a prosecution should have followed in this case is less clear cut. I would suggest that whilst it is not clear cut, especially when considering there is only one tweet, this should not have been prosecuted (with the caveat that there may well be other matters that we are not aware of).
One consequence of making these sorts of offences either way is that people can then have trial by jury. Whilst it may mean higher penalties, it also means that people who are concerned about freedom of speech have the protection of a jury – and in the end who better to decided what is and isn’t acceptable but a jury? It also means that the CPS will have to think a bit more carefully before prosecuting people, which can only be a good thing.