Freedom of expression and offensive political Emails: an important assertion of a fundamental right

8 February 2024 by Guest Contributor

In a significant ruling, the Court of Appeal has quashed the conviction of the appellant for an offence contrary to Section 1 of the Malicious Communications Act 1988 based on an email written to local councillors in a political dispute. In R v Casserly [2024] EWCA Crim 25, The Court gave guidance on – and placed emphasis on the importance of – directing juries on the right to free speech under Article 10 ECHR. The appeal considered the interaction between s 1 of the Malicious Communications Act 1988 and Article 10.

Facts

In May 2022, the appellant, Thomas Casserly, was convicted after trial of a single count of “sending an indecent or grossly offensive electronic communication with intent to cause distress or anxiety contrary to s 1(1)(b) of the Malicious Communications Act 1988”. He was sentenced to a community order and a five-year restraining order, which restricted his freedom to contact the complainant.

The complainant, Victoria Dominguez-Perez, was a Town Councillor for Middlewich. She is profoundly deaf, visually impaired and has a muscle-wasting condition. She had a guide dog, hearing aids and sometimes used a wheelchair. These matters had been reported in a local online newspaper, the Daily Post.

In June 2020, the appellant sent an email to the Middlewich Town Councillor Mike Hunter with the subject line “Re: Middlewich Cemetery: very serious public concerns”. The email raised concerns about “the underhandedness and secrecy that surrounds the Middlewich Cemetery Board”. In the email exchange between the appellant and respondent, the following was said in the email body:

Middlewich has many problems which need addressing and the residents are looking to the councillors to have the knowledge, understanding and intelligence to improve the town for all residents. Therefore, how does a councillor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?

The complainant did not reply but forwarded the email to the police for investigation. In January 2021 the appellant was charged with an offence contrary to s 1 of the 1988 Act.

The prosecution case at trial was straightforward. The appellant had admitted responsibility for sending the email to the complainant. The jury were invited to consider the sentence asking “… how does a councillor with limited reading ability … feel they can make a difference”, and to find that the view expressed in that sentence was grossly offensive and that in sending it the appellant had intended to cause distress or anxiety to the complainant and/or to other recipients of the email. The appellant submitted to the judge that the jury should be directed in such a way as to ensure that when deciding whether the email was “grossly offensive” they took due account of the public role which the complainant had taken on and the appellant’s free speech rights. It appears that the judge did not consider it necessary or appropriate to give the jury any such direction.

The judge directed the jury that to prove the defendant is guilty of the offence charged, keeping in mind the burden and the standard of proof, the prosecution must make the jury sure of the following (Summarised version):

 …it is what you think about the email that is important; and so you have to decide, firstly, was that email, and particularly that sentence, was it grossly offensive? And if you come to the conclusion are you sure it was Mr. Casserly’s intention in sending it to cause distress or anxiety either to her or to others who were copied into the message? It is as simple as that.

The appeal

The appellant argued that the conviction was unsafe because it is incompatible with his right to freedom of expression under Article 10 and so this matter should have been withdrawn from the jury. Alternatively, it was argued that the manner in which the jury were directed was inadequate on the freedom of speech issue. In addition, it was argued that the email was political in context and in content so, following the reasoning in Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin), the term “grossly offensive” may need to be given an “enhanced” meaning to ensure compatibility with free speech rights.

The court held that some forms of self-expression will fall outside the scope of the free speech right since it may amount to no more than vulgar abuse and convey ideas and information. However, the court observed that “it is trite law that speech does not lose protection just because the information or ideas are offensive, disturbing or shocking.” Communications of this kind are within the scope of the right.

The court accepted that the email may have contained insulting, upsetting, and offensive passages in nature. However, sending it did not come close to an act aimed at the destruction of any rights and freedoms in the Convention for the purpose of Article 17, which prohibits the abuse of Convention rights. The Court also ruled that the email could not be treated as a meaningless communication. It considered the subject line indicating serious public concerns and referred to the appellants hope to address concerns and improve the town for all residence. The Court concluded that “the appellant was prosecuted for an exercise of his right to free speech and moreover the expression of an opinion“. The court held the process of the prosecution was incompatible with the appellant’s fundamental right to free expression.

The Court then held that this case was one in which it was necessary to interpret and apply the statute in such a way as to ensure that the proportionality requirement for restrictions to free expression was complied with. The meaning of “grossly offensive” is not defined in s 1 of the 1988 Act.

The Strasbourg jurisprudence identifies a hierarchy of speech, with political speech at its apex. The greater the value of the speech in question, the weightier must be the justification for interference. The proportionality assessment must include some evaluation of the kind of speech under consideration. If the speech is political, it is essential that the offence be defined in terms which reflect the enhanced meaning of “grossly offensive”.

The Court concluded that the directions that were in fact given to the jury fell “materially short” of what was required. The judge did identify for the jury the nature of the appellant’s case but that was not enough. What was crucial was a judicial direction on the matters discussed above. For all those reasons, the Court concluded that the appellant’s conviction is unsafe and quashed the conviction.

Comment

This is one of the first occasions the Court of Appeal has ruled on a defence of this nature under the provision. The Court has given detailed guidance on directing juries on the enhanced right to political free speech under Article 10 ECHR. It is a significant judgment highlighting the fundamental value of right to free speech in a democratic society, particularly in the context of political matters.

Tehreem Sultan is a recent Harvard LLM graduate and is currently working with APPEAL on wrongful convictions and miscarriages of justice issues