Two judges have struck a blow to enemies of free speech after ruling people should have the right to offend and even abuse each other without facing a police investigation.
Presiding over a Court of Appeal case concerning the misgendering of a trans woman on Twitter, Lord Justice Bean and Mr Justice Warby ruled that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having”.
They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted”.
The judgment could have far-reaching implications for officers seeking to bring charges over people’s opinions - a move that has seen them branded the “thought police” by campaigners for free speech.
It comes after a Freedom of Information request by The Telegraph in February found police in England and Wales had recorded 120,000 “non-crime hate incidents” in the past five years, an average of 66 a day.
The figures emerged after the High Court ruled a police probe into “transphobic” tweets was unlawful after former policeman Harry Miller was contacted by an officer from Humberside Police to “check his thinking”.
In October, police closed an investigation into an interview with David Starkey in which the historian told podcaster Darren Grimes “slavery was not genocide” because “so many damn blacks" survived. Both were questioned by police but the probe was reviewed by a senior Metropolitan Police officer and the case was dropped after further legal advice from the Crown Prosecution Service (CPS).
Although the latest judgment does not change the law, such an unequivocal ruling from two senior and highly respected members of the judiciary is likely to influence wayward judges in lower courts that freedom of expression must be protected.
It will also limit the vexatious use of legislation to inhibit freedom of speech in a bid to “police” Twitter spats.
Lord Justice Bean is no stranger to controversial and high profile cases having presided over the trial of James Bulger killer Jon Venables in 2010, while leading media judge Mr Justice Warby is presiding over the Duchess of Sussex’s privacy case against the Mail on Sunday, which has been adjourned until next year.
It came after mother of two Kate Scottow, 40, from Hitchin in Herts, was found guilty in February under an obscure part of the Communications Act 2003 following Twitter exchanges with a trans woman who reported her to police when Mrs Scottow called her a “racist”, a “pig in a wig” and referred to her as a man.
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Stephanie Hayden, 47, a lawyer from Wembley, London, obtained a gender recognition certificate in 2017 that recognises her as a woman in law.
Ms Hayden reported Mrs Scottow to police in December 2018, with Mrs Scottow consequently being arrested and kept in police custody for 11 hours, away from her then 20-month-old son who was still being breastfed. She also has a daughter who is on the autism spectrum and was aged 10 at the time of her mother’s arrest.
The case attracted worldwide attention, including from Boris Johnson, who said of the case in February 2019: “You can’t police properly if officers are endlessly filling custody suites with mums whose crime is to have caused needless offence on Twitter. Whatever the rights and wrongs of this internet feud, we are wasting too much time and resource on cases like this.”
Last week, Mrs Scottow’s conviction was overturned and on Wednesday, the appeal judges published their findings which are critical of the district judge in the trial at St Albans Magistrates Court.
In finding Mrs Scottow guilty of contravening the Communications Act 2003 section 127(2)c, district judge Margaret Dodds said Mrs Scottow broke the “rule’” to “be kind to each other and not call each other names”.
However, Mr Justice Warby said that had the case “been approached by the Judge in a legally correct manner, it should have been dismissed”.
The district judge’s approach to section 127(2)c of the Act was said to be "flawed in several aspects" and her reasoning “deficient”.
Mr Justice Warby stated: “The Judge appears to have considered that a criminal conviction was merited for acts of unkindness and calling others names.”
But he found there is a “fundamental tension” between "most cases” of harassment by speech that includes "alarming the person or causing the person distress" and Article 10 of the Human Rights Act 1998 which expressly protects speech that offends, shocks and disturbs.
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Although he stressed Article 10 "does not give free reign to anyone to be offensive", he added: "The context and manner in which the information is published are all-important. The harassing element of oppression is likely to come more from the manner in which the words are published than their content.”
Mrs Scottow was originally charged with making a false statement but the CPS later changed the offence to “persistently making use of a public electronic communications network to cause annoyance, inconvenience or needless anxiety to another,” as set out by section 127(2)c of the Communications Act.
Mr Justice Warby said: “It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature.”
The judgement states: “A prosecution under section 127(2)c for online speech is plainly an interference by the state with the defendant’s Convention right to freedom of expression.”
The Justice said he did not consider a prosecution “could be justified as necessary in a democratic society”.
Mrs Scottow told The Telegraph the verdict is “a victory for freedom of speech that confirms no one has the right not to be offended.
“This has been the hardest battle I have fought that has had a profound impact on every aspect of my life, from my career to my health and my marriage.
“But it was necessary to enshrine one of the most fundamental rights of every living being in a democratic society - the right to freedom of speech that is now routinely attacked at such a fundamental level.
“Women fighting for their rights against an aggressive LGBT lobby have been silenced for the past three years. I hope this judgment gives them hope.”
Ms Hayden said the judgment “encourages online trolls to abuse, dox and intimidate transgender persons,” adding: “This is unfortunate and a kick in the teeth to the entire LGBT community”.
She said: “I do not blame Scottow. She was entitled to appeal her conviction and congratulations must be extended to Scottow and her legal team. The higher judiciary have ordained that transgender people are legitimate targets. I for one will keep that in mind and respond accordingly.”
A CPS spokesperson said: “The Court of Appeal’s judgment concluded there was not enough evidence to convict the defendant for persistently making use of a public communications network to cause annoyance, inconvenience or anxiety, determining that the timing and level of communication exchanged online did not constitute a criminal offence.
“This is a complex area of law and we will carefully consider the judgment, specifically in relation to comments made online and associated issues of free speech.”
Toby Young, founder and director of the Free Speech Union, said: “Let’s hope this judgment sends a message to Chief Constables. They’ve been getting their officers to spend far too much time sifting through people’s social media accounts, like little offence archeologists. They should be policing our streets, not our tweets.”
Bryn Harris, chief legal counsel of the Free Speech Union said the judgment was "a welcome reminder of when the law will step in to protect free speech."
He added: "We view this as a positive sign that the senior judiciary will exercise their jurisdiction forcefully, and control wayward judges in lower courts who can’t seem to remember their ever-present obligation to protect freedom of expression.
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"The judges in this case rightly recalled that the freedom to offend is not constrained by the facile ‘obligation to be kind’ mooted by the magistrate below.
"The real value in this case is its limitation of the vexatious use of the Communications Act 2003 to inhibit freedom of expression.
"Twitter spats are just not the kind of conduct regulated by the provision the prosecution tried to rely on – that section is directed against heavy-breathers and persistent hoax callers and the like.
"Those who, for whatever reason, are uncomfortable with free speech will still have other legal provisions to resort to. But this judgment removed one particular weapon from their armoury. This is progress, and further good news in light of the Harry Miller judgment."
The Police Federation's Simon Kempton said of investigating Twitter spats: “It’s an area where we would like to avoid having any involvement but there are always cases where individuals cross the line and cause some significant harm to others.”