On 4 November 2015, the Daily Mail covered the prosecution of Ursula Presgrave. Ms Presgrave, 23, had previously appeared on the BBC reality TV show, The Call Centre.
Preserve pleaded guilty to an offence under s.1 of the Malicious Communications Act 1988 (“Offence of sending letters etc. with intent to cause distress or anxiety”). The offence states:
(1) Any person who sends to another person—
(a) a letter, electronic communication or article of any description which conveys—
(i) a message which is indecent or grossly offensive;
(ii) a threat; or
(iii) information which is false and known or believed to be false by the sender; or
(b) any article or electronic communication which is, in whole or 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, so far as falling within paragraph (a) or (b) above, 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.
So what did she do? The news report states that she posted a message on Facebook stating: “‘Anyone born with down syndrome should be put down, it’s just cruel to let them lead a pointless life of a vegetable.'” This sparked a number of complaints from members of the public and the police began an investigation and seized her mobile phone. On the phone there were a number of images carrying slogans “mocking” people with Downs Syndrome.
The news report also states that when questioned by the police about the message, and asked whether or not she realised what she had done was criminal, she answered “Yes, and I am very sorry about it”. Her barrister stated that she was genuinely remorseful.
The offence carries a maximum sentence of 2 years (on indictment) or 6 months (summary) and a fine. Unfortunately, the Daily Mail states the fine is limited to £5,000, whereas in fact, the limit in the magistrates’ court was removed earlier this year. It appears that the case has been adjourned for reports, but the magistrates did not commit the case to the Crown Court for sentence, and so the Mail were at least half-right in explaining the maximum sentence.
I should preface this section with the disclaimer that the only information this comment is based on is that contained in the Mail report.
Several questions arise from the matters disclosed in the news report.
First, there is a question surrounding whether or not the offence is even made out. In this instance, the message must be “grossly offensive” and her intention must have been to cause anxiety and distress. By her guilty plea, she accepts both; however there could surely be an argument against both, particularly the latter. If the message contains her genuinely held belief, and was not designed to cause distress, then one might expect her to be acquitted. In this case it appears that she was advised to plead guilty.
The second question surrounds the “need” to prosecute this behaviour; one wonders whether this really met the public interest test. Perhaps a visit from the police and a quiet chat might have been sufficient. Further, there are surely very many grossly offensive messages sent on Twitter and Facebook every day intended to cause distress and anxiety, and so whether or not someone is prosecuted appears to involve, to a greater or lesser degree some luck. The CPS guidelines on social media prosecutions confirms that a prosecution is unlikely to be both necessary and proportionate where:
1. The suspect has expressed genuine remorse;
2. Swift and effective action has been taken by the suspect and/or others for example, service providers, to remove the communication in question or otherwise block access to it;
3. The communication was not intended for a wide audience, nor was that the obvious consequence of sending the communication; particularly where the intended audience did not include the victim or target of the communication in question; or
4. The content of the communication did not obviously go beyond what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression.
It would appear that points 1 and arguably 3 apply in this case. Additionally, one could argue that point 4 applies, however that is certainly debatable.
The third question is a more general issue surrounding the offence. Previously on the blog, we’ve discussed the issue of free speech and the increase in prosecutions in respect of people saying nasty things on social media (see here and here for an example). Both Dan and I feel quite strongly about the issue of freedom of expression in this context and feel that many prosecutions are unnecessary and/or inappropriate.
Whilst the message in this case was surely in poor taste, and likely to cause offence, I would question a) whether it was grossly offensive and b) if it was, should that behaviour be prosecuted. Some comedians make jokes about people with disabilities and illnesses, or cases involving the disappearance or death of children and those are not prosecuted – perhaps rather strangely considering the comparative size of the audience at which such comments are aimed.
We’ll revisit the sentence next month, but this would appear to be hovering around the custody threshold.