We looked at the case of Robert Riley who was jailed last month for tweeting offensive messaged relating to the death of Ann Maguire. Well, Mr Riley has a companion – on 4th June 2014 Jake Newsome was sentenced to six weeks in prison for a ‘malicious communications charge’. He was using Facebook rather than twitter, but the same issues are apparent.
As in most tweeting/social media cases the full messages aren’t published. According to the BBC – “Jake Newsome wrote that he was “glad” she had been stabbed and he “felt sorry” for the boy accused of her murder. The 21-year-old completed his post with an obscene suggestion“.
The Mirror reported that he had said ““Personally, I’m glad that teacher got stabbed up. Feel sorry for the kid. He should have p***** on her too.””
It’s not clear what the charge is. The news reports would indicate that it was under s1 Malicious Communications Act 1988, but it would be a similar outcome if it had been under s127 Communications Act 2003.
Firstly the sentence. The Magistrates’ Court Sentencing Guidelines are applicable (see page 40). Looking at the guidelines does not help much as they relate to telephone calls. But it would appear to have been treated by the Court as being a series of offensive messages with extreme language and a moderate impact. The increase in sentence from the starting point of six week (before the credit for a plea of guilty) may be explicable by the Court treating these messages as causing ‘substantial distress or fear’.
On that basis, the sentence is probably fair enough, if a little on the high side. The bigger question is whether he should have been prosecuted. The CPS policy on prosecution of social media offences gives four categories of messages :
- Communications which may constitute credible threats of violence to the person or damage to property.
- Communications which specifically target an individual or individuals and which may constitute harassment or stalking within the meaning of the Protection from Harassment Act 1997.
- Communications which may amount to a breach of a court order.
- Communications which do not fall into any of the categories above and fall to be considered separately (see below): i.e. those which may be considered grossly offensive, indecent, obscene or false.
(1)-(3) don’t apply clearly, so it must be that the prosecution falls to be justified under (4). On the face of the Facebook postings as we’ve set out above, it is arguable whether these are ‘grossly offensive’. Even if they are, the policy states that the case “will be subject to a high threshold and in many cases a prosecution is unlikely to be in the public interest.”
It seems that there was not any argument as to the policy in Court (and in any event there have been some fairly dodgy decisions of the Court of Appeal on this point) which is disappointing.
Is this a case that calls out for a prosecution? Is one needed in the public interest? Is it compatible with Art 10 European Convention on Human Rights? We would suggest that the answer is no to all the above. Yet again we are seeing a knee jerk reaction by the CPS to people being caused offence (which is not, and should not be, a criminal offence). It is time that the CPS were called to justify how some of the decisions to prosecute are being made in these sorts of offences.