The development of the internet, and social media in particular, had lead to a revolution in the criminal law in many ways. One is that it has greatly increased the number of ways in which an offence can be committed.
This was discovered by Rhodri Colwyn Phillips, 4th Viscount St Davids, on 13th July 2017, when he was jailed for 12 weeks having been convicted of two charges under s127 Communications Act 2003.
These related to a threat made against Gina Miller (of Art 50 fame) and another an Arnold Sube.
Unsurprisingly, this case has generated a lot of public interest. Equally unsurprisingly, there has been a lot misreporting.
Both posts that lead to a conviction (he was cleared in relation to a third posting) were on his Facebook page which was open to the public, although mainly aimed at his friends.
On 11th September 2016 there was a Daily Mail article “which publicized a Mr Sube who had eight children and needed a larger house to accommodate them“.
This triggered two posts from the noble Lord :
“Please will someone ‘smoke’ this ghastly insult to our country. Why should I pay tax to feed these monkeys. A return to Planet of the apes is not acceptable. Doubtless some horrid do gooder will take this post down. I’ll count the minutes.”
And, shortly after :
“I will open the bidding. £2000 in cash for the first person to carve Arnold Sube into pieces. Piece of shit.”
The Judge found that although both were grossly offensive, it was only the second one that met the test of the charge he faced, namely that the posting was ‘of a menacing character’.
In relation to this, although he was convicted of the charge, the DJ did not find that it was racially aggravated.
In relation to Ms Miller, Baron Strange of Knockin (another of his titles) posted on 7th November 2016 the following :
“£5,000 for the first person to ‘accidentally’ run over this bloody troublesome first generation immigrant. This fucking boat jumper comes to our country, then believes she knows better than the people of our country, what is best for us. If this what we should expect from immigrants, send them back to their stinking jungles”.
The DJ found that this was menacing. Further, Baron Hungerford’s (yet another title of his) attempt at justifying that this was not racially aggravated received short shrift – “He was so clearly showing hostility to Ms Miller based on her race or ethnic origin that I find it ludicrous that he should say otherwise“.
There are other matters that were required to be proved, and it is worth reading the judgement in full to see how the DJ explains these points..
The case was adjourned for a Pre-Sentence Report. Faced with the prospect of a prison sentence, Baron de Moleyns (yet another title of his) indicated that he had considered matters and was now remorseful.
The DJ seems to have approached this with a degree of scepticism (for perhaps understandable reasons)
The starting point was the Sentencing Guidelines for this offence – there is a link here to the Communications Act one if you are trying to follow the DJ’s reasoning. She has Iset out very clearly why she came to the decision that she did – it is very readable and illuminating.
The DJ came to the conclusion that the appropriate sentence for the offence against Ms Miller was 12 weeks imprisonment, with 4 weeks concurrent for the other offence.
One obvious question was why the sentence was not suspended. If there is an appeal, it is likely that this will be something that is aired.
There was also a Restraining Order, and various financial orders made. It seems that Viscount St David has recently been made bankrupt (for the third time) and was of limited means.
We have looked previously at the difficulties that social media prosecutions present. Although somebody with no previous convictions (in this country at least) who gets a sentence of 12 weeks will normally end up with a suspended sentence, there is no rule to that effect.
There is always a tension between freedom of speech and the need to protect the public from postings that go beyond what is legitimate in a democratic society.
This isn’t the first case to raise this, and it won’t be the last. And as the DJ said “The trouble with Facebook is it is not private. One click and the post is shared, potentially all around the world. Any Facebook user knows this“.
On another note, it is not often that one reads a legal judgment, particularly a criminal one, and laugh, but I did enjoy the DJ’s description of the dramatis personae from the TV debate that sparked the Facebook posting – “Gina Miller a high profile remainer (to use a colloquial term) and Nigel Farage, a frequent leader of UKIP“. Although Mr Farage has retired from European Politics to spend more time with Donald Trump, there is a vacancy again at the head of UKIP and by the time you read this, he may have returned to the fray again.