Twelve weeks in prison for sick jokes on Facebook? Really?

9 October 2012 by

Updated x 2 | A 20-year-old has been sent to prison for twelve weeks for posting offensive and derogatory comments about missing five-year-old April Jones on his Facebook page. His attempts at humour were undoubtedly stupid, offensive and exhibited incredibly poor taste and timing. But is a long spell in prison really the way we should be dealing with offensive idiots? Is a law which was passed before social media existed now placing a significant chill on our freedom of expression rights?

Matthew Woods pleaded guilty to an offence under s.127 of the Communications Act 2003, which prohibits a person sending “by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character“. He was sentenced at Chorley Magistrates’ Court.

I will not republish Woods’ comments here, but some of them are quoted in this Evening Standard articleAccording to the Standard, Chairman of the bench, Bill Hudson, said Woods’s comments were so serious and “abhorrent” that it deserved the longest sentence they could pass, less a third to give credit for his early guilty plea. He also said:

The reason for the sentence is the seriousness of the offence, the public outrage that has been caused and we felt there was no other sentence this court could have passed which conveys to you the abhorrence that many in society feel this crime should receive.

Yesterday I attended a roundtable discussion about how to approach section 127 in the age of social media at the Crown Prosecution Service with Keir Starmer, Director of Public Prosecutions and a group of journalists. Mr Starmer pointed out that the Communications Act 2003 was passed before either Facebook or Twitter had been invented, and so the CPS were understandably having trouble knowing how to police the billions of communications made publicly on social media. The CPS is to open the issue to public consultation so it can publish guidelines for prosecutors.

Starmer’s starting point was that, constitutionally speaking, the CPS has to apply the law as it finds it, within the public interest. Fair enough, as long as the “public interest” is interpreted with a very strong emphasis on free expression rights under Article 10 of the European Convention on Human Rights.

But my worry is that this law was not designed for the purpose it is now being used for. In 2003, only perhaps Mark Zuckerberg knew that within the next few years literally billions of people would become mini-publishers on a public communications network. Now, the accidental combination of an old (in technology terms) law, designed it would seem primarily to stop harassment through the post and over the telephone line (see para 6-11 of DPP v Collins), with revolutionary new media may be making criminals of many of us, and that cannot be a good thing.

People post sick, offensive, horrible and stupid things on social media all of the time. People are sick, offensive, horrible and stupid. Anyone who has been to school knows that teenagers can also be sick, offensive, horrible and stupid. As a society, we should try to make people nicer, cleverer and less offensive. But is sending people to prison, along with rapists and violent thugs, the right way to do it?

Sending people to prison for being “grossly offensive” has the whiff of mob justice about it. Anyone who uses Twitter regularly will have seen the mob at work, whether attacking an individual for saying something offensive and stupid, or harassing a celebrity for crimes against taste or their political views. Sometimes this is a bit of fun, sometimes a little more sinister. There are real problems involving malicious harassment of individuals as well as abhorrent views.

But, as anyone who has used Twitter or Facebook will also know, there is a strong sense of community in that social space which is, to a very significant extent, self regulating. People are exposed, ridiculed, embarrassed, ostracised. Many of the rules of large human social spaces apply there too. Like other large social spaces, this can degenerate into mob justice. But should the criminal justice system be in the hands of that mob?

Another very difficult issue is consistency. For example, what is the difference between Matthew Woods’ sick jokes (assuming the Evening Standard printed the worst of them) and famous comedian Frankie Boyle’s, who joked about missing child Madeline McCann and Jimmy Saville on Twitter just last week? I should add that Boyle’s ‘joke’ has been retweeted/favourited by nearly 2,000 people.

Many people would say that freedom of expression rights should not protect people who make grossly offensive jokes. That sounds sensible, until you try to pick it apart. Across history there are examples about people being punished disproportionately for making “grossly offensive” comments, whether about god, political leaders or the military. The reason free expression rights must be robust in a democracy is that leaders (or for that matter, the majority) are not traditionally very good at policing speech and thought, but rather tend to protect their own narrow interests at the expense of the interests of all sorts of others.

The problem is that once the state starts policing speech and thought, this tends to be the thin end of the wedge. People become frightened to say what they feel and instead say what they think they ought to say. Such a climate would undoubtedly place a chill on the wonderful, bizarre, entertaining, sometimes concerning but always interesting world of social media. And that would be bad for everyone.

The case of Azhar Ahmed illustrates the point slightly better than that of Woods. Ahmed posted on his Facebook wall that “all soldiers should die and go to hell“, after the death of six British soldiers. He made no specific threats to any particular soldier or soldiers. He said that “he was only trying to make his point that many other deaths in Afghanistan were being ignored“. He was found guilty of sending a “grossly offensive” communication.

Ahmed is clearly not a consummate or sophisticated communicator. His comments will have upset people. Perhaps his sentiment was that he was very strongly anti-war and therefore political, or perhaps he really wished that all soldiers would die. He obviously never expected to be in court defending his comments. But is the criminal law the best way to deal with such ambiguity? [update – Ahmed has been given a community order (sentencing remarks here), i.e. not a prison sentence, for his comments. Which seems somewhat inconsistent with Woods’ case].

One of the many worrying aspects of Ahmed’s and Woods’ cases is that both of their trials occurred during times of tragedy (the deaths of soldiers, a missing girl) where people are understandably emotional and have lower thresholds for being “grossly offended”. Indeed, a group of 50 members of the public apparently cheered during Woods’ sentencing.

The problem for the CPS, as Keir Starmer is well aware, is that there are suddenly billions of communications for it to police. Many of them, on the view many people on a bus, will be grossly offensive. Even worse, many will remain online forever. But people often use social media to express their thoughts and feelings, not considered missives. Should the state be policing thoughts and feelings? Where is the public interest in that?

It has been reported that Woods was arrested “for his own protection” from the mob circling his house. But I think it is probably fair to expect the police to protect people without having to put them in prison for their own safety.

In July, the Lord Chief Justice quashed the conviction of Paul Chambers, another social media user who had posted a ‘joke’ in bad taste, in that case about blowing up an airport. The judgment waxes lyrical about free speech, even quoting King Lear in relation to Twitter users:

Shakespeare can be quoted unbowdlerised, and with Edgar, at the end of King Lear, they are free to speak not what they ought to say, but what they feel.

But for all the laudable principle behind the Chambers judgment, the reality seems to be that people are not really able to speak what they feel. Woods’ ‘jokes’ were stupid and horrible. But we need to think very hard, as a society, about whether we really want to be sending people to prison for making sick jokes.

Update, 5 November 2012: Woods has had his sentence cut on appeal to six weeks. Everything I have said above still applies – he should not have gone to prison at all.

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  1. James Hargrave says:

    Obiter J seems to have a naive belief in Stipes, sorry, ‘District Judges’. I long ago formed the opinion that renaming them gave them delusions that they were competent to judge. Evidence that they are not would seem to flow from the Paul Chambers case and in the outpourings in the Liam Stacey case of a Stipe (he had ‘no choice’, well, I think he was being paid to exercise choice, if not judgment, unless someone has sneaked in mandatory sentencing) milking his few moments in the limelight – remarks that also showed a pandering to the mob by someone suffering sever delusions of self-importance (in non-technical language – three sheets to the wind).

  2. Michael says:

    I am frankly horrified that this individual has been sent to prison.

    So what if he was offensive? That shouldn’t give someone the right to use the law against this person.

    In the last couple of months, I think we’ve seen a real threat to freedom of speech in this country with cases like this seemingly popping up every few weeks. It’s now getting seriously worrying how much free speech is coming under threat in this country.

  3. James Lawson says:

    Am I alone in considering that it is pretty ironic that the Director of Public Prosecutions – a civil servant should be entrusted with setting the permissible boundaries of Article 10 rather than a court which is supposed to protect it from encroachment by the state?

    Are we now to expect the DPP as gatekeeper into the criminal justice system to protect the freedom of expression (or narrow it?) rather than a court?

    More broadly, at what point may Parliament create a criminal offence secure in the knowledge that a civil servant has no power to emasculate it? Is it right that Parliament should create such wide-sweeping legislative powers and entrust prosecutorial discretion to a state-employed civil servant?

    Was it not Lord Bigham who recently wrote that discretion was inimical to the rule of law? Just what is the head of the judiciary doing about this? Does anyone actually know who it is these days?

  4. It is still unjust, to blight a young life with a prison record, because he told an inappropriate joke.

    The details of the joke may already have been forgotten, but the prison record will stick, and pursue this young man for the rest of his life.

  5. james says:

    And what about the pain and suffering of April’s family – or do we forget all about them who are victims in the tragedy. To defend someones right to kick others when they are down is just wrong.

    1. The pain and suffering of April’s family is of course tragic. Whatever idiot felt it would be somehow helpful or appropriate to paste a graphic of Woods’ sick joke into the timeline of a Facebook page dedicated to the girl ought to be dealt with severely (yes I do believe that). That person however was not Matthew Woods, the author of the joke. Are we clear?

      1. flayman says:

        Sorry about the repetition. This one disappeared and showed no sign of awaiting moderation. *shrugs*

    2. flayman says:

      The pain and suffering of April’s family is indeed tragic, and whatever idiot thought it would be helpful and appropriate to post a graphic of Woods’ comments to an April Jones page where they were not intended to go should be dealt with severely (yes, I really do believe this). That person was not the author of the joke. Are we clear? He made a number of disgusting jokes on his own Facebook wall. You are allowed to do this. If someone comes along and finds them, that is not the same as being sent a message. If someone then puts them in another place and a completely different context, that is an act in and of itself.

    3. MA says:

      The law says this:
      127Improper use of public electronic communications network.
      (1)A person is guilty of an offence if he— .
      (a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character;

      The discussion was about the law -not this particular case. The problems identified with the law, as currently worded, are that I CAN SEND MYSELF an email with content that others could find offensive, indecent, obscene or menacing in character, and would have to plead guilty to the above!

      HMRC however, can send me emails with content I find really offensive and menacing, and, I imagine, they would not ever be charged! I found a letter from the police, telling me that no charges were being brought against someone who attacked me indecent and obscene, but I doubt I’d be able to win a conviction.
      So there is a possible defence.
      In the April Jones case, I believe the original material was posted on a private page, but was re-sent to another website by a third party. A sick joke told in private should not be the subject of a criminal charge…

    4. susan bevis says:

      I know about the pain and suffering of someone who was a severe bullying victim and had serious threats via the internet which led to that person not wanting to live. I think you are right. Noone should defend someone’s right to kick others when they are down. As for this so called civilised country there seems to be no law to protect those being abused under the mental health system which used “confidentiality” to cover up freedom of speech. Where is the freedom of speech when you get threatened with legal action for wishing to expose the truth. I have no sympathy as I have seen someone not wanting to live any more as a result of such nasty comments spread over the internet.

  6. ObiterJ says:

    This case has intrigued me. Are there facts of which we are not aware? I know not. On the basis of what we know, the sentence was too severe. Please see:

    1. I’ve been trying for days to speak to the solicitor. We keep playing phone tag. If I find out more information I will reveal it here.

      1. ObiterJ says:

        Thanks. It was good to debate the Woods case here.

    2. M says:

      Guardian opinion article here :

      Maybe the complainants were the McCanns??? Name should have been on the charge sheet? But according to the Communications Act 2003, those who are grossly offended by the message “need not be the recipients”. Just so long as somebody gets to be outraged.

      1. It either has to be grossly offensive on an objective reading, in which case it doesn’t matter if never received by any one, or the sender needed to have knowledge that it would be particularly offensive (to the point of grossly) to a recipient. Chambers v DPP has effectively sorted this out, though with menace. Chambers v DPP was of course not consulted.

      2. ObiterJ says:

        The Act does not even require that anyone sees or reads the message! (See Lord Bingham’s speech in DPP v Collins). This legislation is a nightmare!!

        1. flayman says:

          As I said, Chambers v DPP solves this. See para 32:

          “In our view, the Crown Court read too much into the observation of Lord Bingham in his judgment in the House of Lords that the criminality of the sender cannot depend upon whether a message is received by A or by A’s reaction. Lord Bingham was saying no more than that a message proved by an objective assessment, applying the standards of an open and multi-racial society to be of a prescribed kind, does not cease to be so just because it was not received or because the person who received it was not, in the context of the present prosecution, menaced.”

          Still not spoken to solicitor. Secretary confirmed that he took the case the very same day it went to court.

  7. Stephen says:

    One of the most concerning aspects to all this is the uncertainty. How does an individual know whether or when his or her remarks cross the line into criminality? The law is so open-ended is is very difficult to know.

    What constitutes gross offence? Does its definition accord with common sense so that ordinary men and women on the street understand it?

    Individuals may have different conceptions of gross offence, depending on their social class and culture. Do the authorities take account of this so that individuals from one class or culture are not favoured over others? The evidence to date, suggests not.

    In its current open-ended form, the law facilitates abuse by the authorities. A prosecution can occur because an alleged offender may be known to the police. The same alleged offence may be ignored when committed by another.

    The CPS may decline to prosecute in one case because of the alleged offender’s high social status but prosecute in another case where it is a “pleb”.who is the alleged offender.

    It appears that all sorts of anomalies can and have occurred.

    If the state does want to outlaw certain behaviours then it should be specific so that we all know where we stand and so the law is applied consistently and without prejudice. I suspect it is the current drafting of the law which is responsible for these recent and current episodes.

  8. Tom (iow) says:

    I just saw that Frankie Boyle has released a batch of Saville jokes on Twitter. But instead of tweeting the jokes, he has linked to an HTML page containing them. Presumably this puts them beyond the reach of s. 127 – which just shows how utterly vacuous the law is.

    1. M says:

      As I posted earlier, no, HTML pages would indeed still fall under s.127 :

      127Improper use of public electronic communications network.
      (1)A person is guilty of an offence if he— .
      (a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or .
      (b)causes any such message or matter to be so sent. .
      (2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he— .
      (a)sends by means of a public electronic communications network, a message that he knows to be false, .
      (b)causes such a message to be sent; or .
      (c)persistently makes use of a public electronic communications network. .
      (3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. .
      (4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)). it stands, using a ‘pecn’ (ie computer and browser) to post material of any sort (offensive electrons?) onto an HTML site is still covered.

      Paragraph. 4 seems to give a ‘you tube ‘ channel (‘broadcast yourself) protection ……

  9. Perhaps there are too many cases of people undergoing cosmetic surgery, or botox intervention, which is inhibiting their ability to smile, or see the funny side of things these days.

    One man’s meat may be another’s poison, and yes, you have only to look at the television, or listen to the radio, to have this verified. Humour has ever been cruel – with double barbs that make a joke funny to one, while wounding another.

    Some of us laugh with relief, because we are not on the receiving end; like laughing when someone slips on a banana skin because we’re glad we’re not the one doing the slipping; looking foolish, or hurting our backsides when we land, but it is a question of degree, and knowing the boundaries. That said, no one deserves to be sent to prison for uttering foolish remarks, unless it is an . Incitement to commit an act of violence.

  10. chooga says:

    The people involved in the mob, or at least the leaders, are also guilty of inciting violence, are they not? I think it is quite ridiculous that they could sit in the court room, admiring the fruits of their labour. The Chairman of the Bench gave in to Mob Rule. He should be ashamed. The law is also their to protect Matthew Woods. He is an immature teenager, who was being nothing less. HE has been let down by the Justice system, and is now in Prison, which is probably very frightening for him. The message needs to be delivered, Prison sentences cannot just be handed out like leaflets in a shopping Mall. He should have (At Worst), been given a small Community service sentence, and had his eyes widened to get in touch with reality. His sentence is a joke, and is being watched Worldwide. U.K is fast becoming Uk.S.A

  11. ivan says:

    Does any other usually civilised country lock people up for making offensive jokes on social media?

  12. James Wilson says:

    There are three problems here. First, the sentence is wholly disproportionate given the number of crimes involving actual violence or burglary or other things distinctly worse than offensive words on the internet which do not result in any custodial sentence.

    Second, and more fundamentally, criminalising offence is contrary to the basic idea of freedom of speech, which is that not only “good” speech is permitted. I can’t say I find the humour of Russell Brand or Frankie Boyle particularly funny, so I don’t bother watching/reading them. That is the simplest remedy.

    Thirdly, any attempts to ban offensive material on twitter and facebook or the internet generally are pretty much doomed to fail, because there are many millions of posts every day, and any number are generated overseas and thus beyond the jurisdiction anyway.

    1. L says:

      You are soo wrong Stephen ! Facebook censorshop is already alive and well in the UK! We’ve been posting Wiki pages on these cases worldwide for some time now…see:

      “In the United Kingdom on April 28, 2011, the day before the Wedding of Prince William and Catherine Middleton, a number of politically motivated Facebook groups and pages were removed or suspended from the website as part of a nationwide crackdown on political activity. The groups and pages were mostly concerned with opposition to government spending cuts, and many were used to organize demonstrations in a continuation of the 2010 UK student protests The censorship of the pages coincided with a series of pre-emptive arrests of known activists. Amongst the arrestees were a street theater group planning a performance in opposition to the monarchy, whose members included a 66-year-old professor of anthropology,and five people dressed as zombies who were drinking tea in Starbucks at the time of the arrest”

  13. Kevin Cidle says:

    I find the magistrate who handed out this sentence, and the comments he used in doing-so, offensive. Who do I see about having him arrested and jailed? Or do I need to get together a lynch mob and threaten his life before action is taken against him?

  14. Gavin Steele says:

    Absolutely A1 spot on, Adam! You frame the question beautifully.

    I can understand the DPP’s dilemma: the government has belatedly woken up to the fact that social media are a wild new frontier that has hitherto hardly been policed AT ALL, and in which a “say absolutely anything” culture has taken root. Realising the potential pitfalls of this (think only of the global chaos caused by the offensively anti-Islam US film – not strictly social media, but analogous), they are now scrambling for a strategy to handle what could be a potentially vast new legal minefield.

    The strategy so far – if there is one – seems to be to “make an example” of one or two high-profile and heavily mediatised cases, if only to remind everyone that there should be limits to the “say anything” culture. It’s almost social engineering rather than law: the government has the thankless task of trying to remind a new and heedless generation about basic courtesy! In the anonymous, instant and impersonal world of cyber-space, all the social graces which have evolved over millennia of face-to-face human interaction seem to have gone out of the window.

    The good news is that everybody seems to agree the old laws may not necessarily be appropriate in cyber-world, and we begin the process of grinding towards some new ones. Technology has changed society – and now the law has to catch up. If a few more think twice before hitting that “send” button, this can only be a good thing.

    1. Tom (iow) says:

      Not sure I totally agree with you about the etiquette side of it. I have been hearing similar jokes face to face for as long as I can remember.

  15. Tom (iow) says:

    If you had to explain Pussy Riot and this case to aliens, could they be distinguished?

  16. Matt Wardman says:

    It seems to me to be absurd that this was even considered by the police, never mind prosecuted and the victim of that legal process sentenced to prison.

    The problem comes back to silly laws enforced in silly ways by silly courts, imo.

    I’d like to see the particular nest of laws that rely on ‘indecent’ comments or ‘offence’ simply repealed; they have no place in the 21C.

    The idea that we have a right to punish someone because we say that we are upset, or that somebody else is upset, is stupid and illiberal.

    Inciting violence or a crime should be an offence; expressing an opinion – however unpleasant – should not.

    Unfortunately in some areas the Coalition appear to have swallowed the Blairite Kool-Aid.

    In the case of Facebook or Twitter, no one has to read them or subscribe to a particular user.

  17. ObiterJ says:

    There is an awful lot of pressure to plead guilty these days – especially in Magistrates Courts.

    I was not necessarily saying that prison was justified – FULL facts needed to be able to say for certain and my previous post was based on the point that we might not know the full facts. Are you certain 100% that you have full facts? In the absence of a judgment saying what actually influenced the bench I could not be so certain.

    In Mags Courts, the old attitude still lingers that Mags are advised to say as little as possible. The adage that your decision may be right but your reasons wrong – still seems to haunt those courts. District Judges – who I think will replace lay benches in the next 10 years or so – have little difficulty writing reasons. The vast majority of lay benches have some problem with this as do their advisers. Even in family law cases before FPCs, reasons tend to be rather inadequate. Naturally, there are exceptions to this and so I write with respect to the Magistracy who generally do a great job with little thanks for it and, dare I say it, lawyers should help them rather more.

    REASONS are really and truly needed these days but, if prepared, they need to be thorough. Read the District Judge’s reasons in the Ahmed’s case. They did NOT refer to sentencing guidelines which, by law, the court is required to consider and so even the DJ’s reasons are open to some criticism if one wishes to nit-pick but, at the end of the day, we must remember that Magistrates Courts are courts of summary jurisdiction and their processes are geared accordingly. They do not have the luxury of adjourning along the lines of Curia Advisari Vult (CAV) and handing down judgment weeks or months later!

    I actually think that 12 weeks was high but I would not rule out the possibility that a prison sentence was right but, let’s say it again,we do not necessarily know all the facts.

    1. ObiterJ says:

      Having just re-read the Ahmed case I note that the DJ did refer to sentencing guidelines. My apologies for saying otherwise. The DJ said that he was satisfied that Ahmed’s case passed the custody threshold but he felt able to impose a community sentence.

  18. JK says:

    MF: 1. Yes 2. Dunno. 3.Woods cannot appeal against conviction, given that he pleaded guilty , but an appeal against sentence could have some prospect of success. There’s also a potential Human Rights Act case – the DPP’s own officials have noted in their guidance that it was not the job of the criminal law to protect the public against bad taste remarks or opinions controversial opinions. The European court of human rights stated in 1976 that the right to freedom of expression includes the right to say things or express opinions “that offend, shock or disturb the state or any sector of the population”.

    Article discussing this by Joshua Rosenberg :

    1. ObiterJ says:

      I would agree entirely that an appeal against sentence has prospect of success with the possibility of getting it reduced to a community sentence. However, the Crown Court would allow for the fact that Woods was locked up and so don’t expect too much if they do go for a community sentence.

      1. flayman says:

        I’m told that an appeal by case stated is a possibility, though rare, regardless of the guilty plea.

  19. MF says:

    If someone were to re-tweet a message deemed “grossly” offensive would they then also be liable to prosecution as they would fall under S127 (1)(b)?

    S127 attempts to regulate what appear to be electronic public order offences. Could these offences be dealt with under Public Order offences, such as, a Section 5?

    1. JK says:

      RE: Section 5 – current government consultation on removing /defining ‘insulting words’ is here :

      …..much needed since the arrest for calling a police horse ‘gay’!

    2. JK says:

      oddly, if someone HAD been charged with a S.5 POO , a possible defence for a charge is that “The defendant was in a dwelling and had no reason to believe that his behaviour would be seen or heard by any person outside any dwelling.”
      soooo, for example, if his facebook page was ‘subscribe only’ , he’d have had a defence there, if his only subscribers were people in the same house…use of the words ‘outside any dwelling’ is interesting too, since few people view facebook when they are out of doors….

      1. james says:

        A dwelling is a building – the judge would have to agree that this analogy works but im not so sure they would.

  20. goggzilla says:

    Dear Obiterj The remarks were published. Juvenile, sick, nasty. Also mentioned Maddie McCann. Woods said he used “Sickipedia” as a source of inspiration.

    1. flayman says:

      Yeah? So what? Nobody was abused until some third party took it upon themselves to post a screen shot of the truly offending words into a Facebook page for April Jones. This goes well beyond the original context and intent of the author. The person who misused the update in this way should be treated as the sender of the message within the Act or nobody should.

      1. goggzilla says:

        I have limited sympathy. Facebook is more private than Twitter so one ought to have free rein to post whatever. If one is “amongst friends” it is different – in the course of research I saw comments on EDL pages that would land one in jail.

      2. flayman says:

        I’m sorry, but you are misinformed and for that I have little sympathy. Facebook is no more private than Twitter. Twitter privacy is all or nothing. Most people using Twitter and Facebook these days post public messages. It’s what makes the medium particularly interesting and effective. Facebook made public updates the default when they set new privacy controls (they are notorious for this sort of thing).

        Are you also misinformed about this case? The remarks were recorded as Facebook updates (among friends as you say) to the guy’s own wall. The updates were publicly available and some busybody decided to put them in a place where they were not intended to go. The comments you saw on EDL pages that would land one in jail, did they land anyone in jail? There’s no difference. Maybe I’ve completely misunderstood. If so, I apologise, but you seem confused.

  21. ObiterJ says:

    Woods was sentenced by a lay bench and it seems that only brief reasons were spoken in open court. Contrast with Azhar Ahmed where a District Judge prepared written reasons.

    I do not necessarily criticise a lay bench for this. They are not required to issue written reasons and, for that matter, nor are District Judges but it comes more naturally to the latter. The Chairman (Mr Hudson JP) said enough to make it clear the abhorrence with which the bench viewed Woods’ remarks.

    Media reports of Woods’ case refer to sexually explicit remarks in relation to a 5 year old missing girl. I have the distinct feeling that the media have refrained from publishing some of the remarks – perhaps out of a desire not to cause further misery for April’s family. Clearly, unless we know all the comments then we cannot really say whether imprisonment was right. Even in Ahmed’s case, the judge said the case crossed the custody threshold but, on the facts, he felt able to impose a community sentence.

    If this summary offence is to be imprisonable at all (and that’s a matter for Parliament) then it is not entirely easy to see why someone should not go to prison who makes sexually explicit remarks about a 5 year old girl who has gone missing and may never be found. The added distress caused to April’s family by such remarks must be unbearable. The question would be for how long. Only in that regard is 12 weeks perhaps too long.

    Woods’ ‘jokes’ were stupid and horrible. I absolutely agree.

    We need to think very hard, as a society, about whether we really want to be sending people to prison for making sick jokes. I also agree but having thought about it, I think Woods deserved to hear the clang of the prison gates. Also, let’s remember that deterrence is a valid sentencing consideration.

    I am pleased that the DPP is looking at policy and I am delighted that the matter is going out to public consultation.

    The Magistrates’ Court sentencing guidelines of the s127 offence really do require updating. You would think that only telephone calls were covered – see page 42 of

    The SGC ought to get to work on this in parallel with the DPP’s review.

    1. Are you really saying you think prison was justified? You want to know what this guy wrote. You can find it in comments here if the commenters are to be believed:

      It’s a pretty sick joke, but it’s not the worst thing I’ve ever heard. Also it was made to the guy’s own Facebook wall. I wonder had he turned it around and written “…Santa comes in December” whether he would have even been arrested. Commenters also point out that someone else took a screen grab of the update and posted it to a page for April Jones. If anyone is culpable, it would be that person, who surely must have expected the reaction it would inspire.

      Woods should never even have been arrested. He should certainly not have taken the awful legal advice of pleading guilty to a police charge. I doubt the CPS would have charged. Keir Starmer today was emphatic to the round table that this was not a CPS charging decision.

      1. Stephen says:

        I have just read the item for which Mr Woods has been imprisoned.

        Prison for telling a joke!!!

        I am speechless. Perhaps the ultimate effect of the prosecution and conviction is to make us all speechless.

        1. flayman says:

          Yeah, and here’s the worst part. Paragraph 38 of Chambers v DPP should have been enough to duck the necessary mens rea even if the actus reus is made out. There was really nothing that you could call a defence provided.

          “We would merely emphasise … that if he may have intended the message as
          a joke, even if a poor joke in bad taste, it is unlikely that the mens rea required before conviction for the offence of sending a message of a menacing [grossly offensive] character will be established.”

  22. goggzilla says:

    Art 10 does not extend to standing outside a Masjid (or Schul) shouting “Seig Heil”. We are seeing (with the charging today of another 2 in the Ched Evans case) a dichotomy between free speech (I exclude RIP trolls such as Woods) and what is acceptable (not to the EDL who wanted Ahmed jailed at the least). It is a tricky situation – I may not support the army in Afghanistan but what next? Desecration of WW1 & WW2 graves? This will be a biggie over the next few months.

  23. M says:

    RE : Case Law????
    S. 127(4) reads “Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).”
    Does that cover material and comments left on a ‘youtube’ channel ? The system on you tube is that they act as a ‘broadcaster’ but have a code of conduct ( for users – if you are offended by any of the content, you can flag content or comments as ‘inappropriate’ and they remove it.
    Seems far saner than criminalising a youngster who was drunk and sitting in his own home (according to the Daily Mail coverage of this case)….and who apologies onsite on the same night he posted the offensive comments…..

    but is there any case law specifically on youtube?

  24. Laila Namdarkhan says:

    You freedom of speech people make me laugh. It is not freedom of speech to wilfully abuse people words are as harmful as an act if violence. This nasty person deserves the sentence given. I see no reason to protect wilful and gross intention as in this case to cause harm. Smirking as he was sentenced also appears to indicate that this lout is not at all sorry for his abuse or cares about the distress he has caused others. Are you suggesting that this person is now a hero for the banner wavers of freedom of nasty aggressive speech?

    1. Dan M says:

      The question which needs to be asked concerns the nature of the harm. Do you really consider that individuals should be protected by the criminal law from suffering hurt feelings? Should the soft-skull doctrine be extended to those without a thick-skin?

      Of course the comments were offensive and the individual responsible for posting those comments should be taken to task for making them. And if the individual began, for example, a pattern of harassment of the family of April Jones then the matter would be considerably different. This case however is one where the individual made incredibly ill-advised comments in very bad taste, nothing more and nothing less. Nobody was anything more than upset or outraged by them. In fact, the prosecution would not have required even that: see DPP v Collins, in which the mere making of such a statement over a “public telecommunications system” was held to be sufficient in law.

      There is a real issue here of the criminalisation of speech which is simply unpopular or (worse) inconvenient for those in authority. If you were to make, for example, a “grossly offensive” statement about a Member of Parliament you were not particularly keen on then it would be a statement caught and criminalised by this law. In an open, liberal society founded upon the human rights and the rule of law, free expression cannot be fettered by public opinion. Otherwise one possesses no such right.

      Let me end by asking this: if you were in a verbal argument with someone which descended into incivility, and your opponent said something non-threatening but offensive, do you think the criminal law should intervene? If not, why do you consider it should intervene where such a statement is made online?

      1. Maria says:

        “if you were in a verbal argument with someone which descended into incivility, and your opponent said something non-threatening but offensive, do you think the criminal law should intervene? If not, why do you consider it should intervene where such a statement is made online?”

        I don’t think this is really a great comparison. In an argument we’ve probably all said and received offensive comments in the heat of the moment. It’s usually private, between two people. This young man wrote something in public which would be deeply offensive to many people, most of all to the family of a recently murdered young girl who he doesn’t even know and who are already going through some sort of hell which most of us can’t imagine.

        Abuse of social media happens too often. Am I right in thinking some youngsters have taken their own lives after online bullying? I’m not qualified to know whether this young man’s sentence is appropriate for his crime but if it acts as a deterrent for others who might otherwise have done similar then I don’t think that’s all bad.

    2. Adolph says:

      So I should not be free to ridicule e.g. a living dictator, who might be very upset if I make reference to (for example) his monorchidism? Or to the gonadal insufficiencies of one of his ministers?
      I wasn’t in court, so I don’t know whether Mr. Woods was indeed ‘smirking’ whilst being sentenced, but as those who support freedom of speech ‘make you laugh’, I think we can safely carry on being ‘amusing’

  25. Alasdair says:

    Much like s.5 of the Public Order Act (causing ‘Harassment, alarm or distress’ via threatening or abusive behaviour), s.127 of the Communications Act is drafted far too broadly and potentially criminalises a broad range of behaviour that should not be criminal. Simply put, even being ‘grossly offensive’ isn’t a good enough reason to criminalise free speech.

    This section does have a purpose – to protect people from personal harassment – but there are better ways of doing that like the Protection from Harassment Act. It should be modified (perhaps so that it does not apply to messages broadcast to the public, only to private ones?) or better yet, repealed entirely. We’re a nation of grown-ups and should be able to deal with offensive language without running to the police.

  26. Lofthouse says:

    Adam is quite right – ” free expression rights must be robust in a democracy .. as leaders… tend to protect their own narrow interests at the expense of the interests of all sorts of others”

    We should recall that following the 2011 England riots, Louise Mensch (the current government’s chosen ‘Expert’ on social media) called for Twitter and Facebook to be shut down during disturbances to stop the spread of false rumours wasting police resources She compared the action with brief interruptions to road and rail networks during emergencies.However, Sussex police said they had actually used Twitter to stop rumours ( ).

    A year later, after lawful and entirely peaceful UK Uncut protest outside Nick Clegg’s home by wheelchair-bound protesters, Ms. Mensch Twittered a call for the criminalisation of protests anywhere near MPs homes or properties, and a similar shut down of the protest groups websites. Quite what level of GENUINE public support there was for this is hard to assess as a fair number of her ‘followers’ were fake ( The ease with which one can falsify support on a website highlights why public offence or outrage in the Matthew Woods case should not have been assessed by the number of ‘disgusted from Norwich’ posts on the April Jones Facebook page.

    Mrs. Mensch (currently MP for the underwater constituency of Northstead Manor – presumably they use a Hydrophone for Twitter feeds there???) was subsequently found to have failed to register herself as a ‘data controller’ for the eponymous ‘social media ‘ site (PE passim – r.r.) …which is a criminal offence under the DPA. However, the powers that be chose not to issue a mandatory £20,000 fine ..I can’t help feeling they have been a little harsh in jailing Mr. Woods….

  27. Tom (iow) says:

    And remember, so far they have not started enforcing the part of s. 127 that adds “or indecent”. Those additional words are extremely, as it were, menacing as they potentially criminalise not only unpopular speech but all internet pornogrpahy and sexual text. That alone makes me think that Parliament must have only intended s. 127 to apply only to nuisance phone calls, not the internet at large.

    1. M says:

      Agree: the wording part 1 differs from part 2: in the former you just have to send the message or material, in the latter, it has to be ‘”for the purpose of causing annoyance, inconvenience or needless anxiety”

      So what happens if I accidentally add in the wrong recipient for an email ?
      I also use file transfer sites for files that are too large for my email inbox- they are a ‘public electronic communications network’, as is ‘the cloud’ – with the current wording, it doesnt seem to matter if anyone else SEES what I send, let alone gets offended by it – the offence is committed just by sending it!

      127Improper use of public electronic communications network.
      (1)A person is guilty of an offence if he— .
      (a)sends by means of a public electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character; or .
      (b)causes any such message or matter to be so sent. .
      (2)A person is guilty of an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, he— .
      (a)sends by means of a public electronic communications network, a message that he knows to be false, .
      (b)causes such a message to be sent; or .
      (c)persistently makes use of a public electronic communications network. .
      (3)A person guilty of an offence under this section shall be liable, on summary conviction, to imprisonment for a term not exceeding six months or to a fine not exceeding level 5 on the standard scale, or to both. .
      (4)Subsections (1) and (2) do not apply to anything done in the course of providing a programme service (within the meaning of the Broadcasting Act 1990 (c. 42)).

  28. M says:

    ‘Hitler only had one ####’ = factually accurate according to some (

    ‘Goebbels had two but both were small’ = designed to cause distress. ?

  29. Dan M says:

    Very good article. Offensiveness is a hugely subjective thing, and frankly something which the law should not intervene to prohibit until it has the propensity to cause harm to an individual on the receiving end of it – I am thinking of racial abuse which does have an impact on those groups suffering from such abuse.

    Comments which are doubtless ill advised and inflammatory should not be prohibited by law for the reasons stated in this article. I took the opportunity to peruse a Facebook page concerning April Jones as I was certain I could find similarly “offensive” comments there. [sorry, I have moderated this as I am concerned no to republish “grossly offensive” comments! Adam] (apologies for the language, but I think it important to repeat verbatim). I personally find it absolutely abhorrent that anyone would hope that a prisoner be raped in prison, irrespective of their crime (and particularly in this case where the “crime” appears to be so problematic itself), yet I doubt that the CPS would consider any criminal proceedings in this instance, and seriously doubt that any judge or magistrate would consider a sentence of imprisonment appropriate if proceedings were raised.

    I hope the CPS consultation bears fruit, as it appears that prosecutions for this offense and becoming more common, and will have the inevitable effect of stifling free expression on the internet, a medium of which free expression is a cornerstone.

  30. Tom (iow) says:

    It doesn’t seem to me that much hard thinking should be needed. This sentence is obviously stupid and evil. Popular speech does not need Article 10 rights to be allowed – the only domain of a right to freedom of speech is unpopular speech. If Woods deserves prison, do does almost everybody I went to school with.

    I have sat in court when defendants were accused of using offensive language, and one thing that happens is that the language being repeated in the solemn atmosphere of the court causes it to seem far more shocking and criminal, and this perceived contempt is then imputed onto the defendant. This probably partly explains the reaction of the gallery, as well as mob mentality.

    Given that the threshhold for the offence to be committed at all is ‘gross offence’, it seems unjust and circular to then use that same ‘grossness’ of it to go straight to the maximum sentence. Surely the starting point for gross offence on its own is a low-end sentence, with only different factors then increasing it, such as the degree of harassment or threats present (none, here).

  31. This sound ominous, and too heavy-handed. I am not in favour of cruel jibes, but these were merely words – no one’s life was threatened.

    What has happened to our stiff upper lip? So very much in the news at the moment with Ian Hislop on the BBC. I suppose, like so much these days, its turned into silicone jelly.

  32. Patricia says:

    Good article, people having the police sent round,imprisonment for upsetting someone’s sensitivities. Perhaps those in the establishment should re-read Mill. They are supposed to protect us from the mob and curtain twitchers, not encourage them.

    1. M says:

      I was puzzled why he was “arrested for his own safety” – only the Police could have known his real identity and home address. Who else could have been responsible for telling the local press who he was, what he’d been charged with, and where he lived?????

      1. Tom (iow) says:

        Yes, there’s a nasty hint of victim-blaming in ‘arrested for his own safety’.

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