Roses are red, violets are blue, I can be offensive on Twitter, as long as I don’t annoy you?

Valentine’s Day is that time of the year associated with demonstrations of affection, love and devotion. However, when it comes to the transgender debate, it is fair to say there is absolutely no love lost between the opposing sides.

This Valentine’s Day saw the handing down of judgment in the case of R. (on the application of Miller) v The College of Policing [2020] EWHC 225 (Admin).

For those not familiar with this particular battle in the ongoing Gender Wars, Harry Miller was reported to the police for making a series of alleged “transphobic” comments on Twitter. The messages were recorded by Humberside Police as a “non-crime hate incident” and Mr Miller was spoken to, purportedly to prevent matters escalating.

Knowles J held that although Mr Millers tweets were “opaque, profane, or unsophisticated” there was not a shred of evidence that he was at risk of committing a criminal offence. The judgment also reiterated the European Court of Human Right’s comments in the case of Handyside[i] that freedom of expression is “applicable not only to ‘information’ or ‘ideas’ that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb the State or any sector of the population”.

Meanwhile, in a magistrates’ court in Hertfordshire, Kate Scottow was being convicted of using a public communications network for the purpose of causing annoyance, inconvenience or needless anxiety to another. This case also involved comments made on Twitter, this time about transgender activist and self-described lawyer, Stephanie Hayden.

An interesting feature of the Scottow case is that she was charged under section 127(2) of the Communications Act 2003. Unlike section 127(1), which requires the message sent to be grossly offensive, indecent, obscene or menacing, the bar set for an offence under s127(2) is much lower – persistence with the purpose of causing annoyance, inconvenience or anxiety to another. There is no guidance on this particular offence, all case law refers to s127(1), as does the Crown Prosecution Service guidance on prosecuting cases involving social media.

However, it does appear that this offence is ordinarily utilised to prosecute hoax 999 callers and such like, which does raise the question as to why it was used in a case involving, at its highest, someone being rude on Twitter.

CPS policy states that where social media is used to facilitate a substantive offence, prosecutors should proceed under the substantive offence in question. Presumably, the facts of this case did not support a prosecution under either section 2 of the Protection from Harassment Act 1997 or section 4A of the Public Order Act 1986.

In respect of prosecutions under s127(1) prosecutors must be satisfied that the communication in question is more than:

• Offensive, shocking or disturbing; or
• Satirical, iconoclastic or rude comment; or
• The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it; or
• An uninhibited and ill thought out contribution to a casual conversation where participants expect a certain amount of repartee or “give and take”.

No such considerations apply to s127(2). Therefore, it could be assumed that prosecutors in this case were looking to circumvent their own guidance on prosecuting social media cases when considering charges against Ms Scottow.

It is understood that Ms Scottow intends to appeal which will hopefully bring some much-needed guidance. In the meantime, you’ll just have to stop being so annoying.

[i] Handyside v United Kingdom (1979-80) 1 EHRR 737

If you would like to instruct Catherine, please contact her clerks on 0117 9211966 or crime@qsc.law