Communicating harm
A Holocaust denier convicted of a communications offence has had her prison sentence increased by the crown court.
In April, Alison Chabloz-Tyrer was sentenced to 18 weeks in prison on three counts of sending grossly offensive, obscene or menacing messages through a public communications network. That’s an offence under section 127 of the Communications Act 2003.
The charges were brought over comments Chabloz-Tyrer, 57, made on a online radio show which she later promoted through social media. Derbyshire police said her remarks also amounted to breaches of conditions imposed as part of a previous suspended sentence for similar offences.
At Southwark crown court last week, Chabloz-Tyrer appealed unsuccessfully against her conviction. In those circumstances, section 48 of the Senior Courts Act 1981 allows the crown court to increase the appellant’s sentence — though not beyond the maximum available in the magistrates’ court.
In addition to her 18-week sentence, half of which she had to serve in prison, Chabloz-Tyrer had been ordered by Westminster magistrates’ court to do 180 hours of unpaid work. She was also given a 20-day rehabilitation activity requirement. After hearing yesterday that she had completed just 43 hours work and four days of the rehabilitation requirement, Judge Beddoe, sitting with magistrates, activated the suspended sentence Chabloz-Tyrer had received in 2018 and varied her sentence to a total of 32 weeks. That’s an additional 14 weeks, of which she will now serve seven in prison. She was also ordered to pay £1,800 costs.
Modernising communications offences
The offence of sending grossly offensive messages over a public communications network has been largely unchanged since it was first enacted in 1935, reputedly to protect operators at manual telephone exchanges from customers who might pick up the phone and take advantage of them. Last month, the Law Commission recommended a package of reforms.
Although I am a non-executive member of the Law Commission board, I have no involvement in its reports. I welcome these proposals although I raise one concern at the end of this piece.
A new harm-based offence
We have already encountered section 127 of the 2003 act, which makes it an offence to send a communication over the internet that is grossly offensive, indecent, obscene or menacing.
In addition the Malicious Communications Act 1988 prohibits communications that contain threats or are grossly offensive or indecent. Though these communications do not have to go through a public communications network, they do have to be sent to “another person”.
In the Law Commission’s view, these offences pose two problems:
First, the laws under-criminalise. Many culpable and damaging communications are left without appropriate criminal sanction. The current offences prohibit particular categories of content and, in some cases, particular modes of communication, but some abusive, stalking and bullying behaviours, despite causing substantial harm, simply fall through the cracks.
Secondly, at the same time, the offences over-criminalise. The scope of the existing offences permits prosecutions that, absent the careful prosecutorial guidance we have seen, would be so great in number as to swamp the criminal justice system, and may nonetheless constitute an unjustifiable interference in freedom of expression. By proscribing content on the basis of apparently universal standards — such as “indecent” or “grossly offensive” content — the law criminalises without regard to the potential for harm in a given context.
As the commission points out, two consenting adults exchanging sexual text messages would be committing a criminal offence at the moment, as would people saving sexual photographs of themselves to the “cloud”.
The third problem is that terms like “indecent”, “offensive” and even “grossly offensive” are subjective. There can be little doubt that Chabloz-Tyrer’s remarks — which I won’t repeat — were grossly offensive. But her earlier convictions under section 127 started as a private prosecution and ended as a “procedural nightmare”. Reform is clearly needed.
The Law Commission’s solution is to replace subsection (1) of section 127 and the Malicious Communications Act (which has only one substantive section) with a new harm-based offence:
By focussing on communications that are intended to — and likely to — cause harm, rather than focussing (as the current law does) on broad categories that may or may not track harm, we necessarily have an offence that is context-specific rather than one based on general or universal standards such as “gross offensiveness”.
Offence of sending harmful communications
Last month’s report from the Law Commission does not come with a draft bill attached — but the proposed elements of the new offence are clearly specified.
The prosecution would have to prove that:
the defendant sent or posted a communication that was likely to cause harm to a likely audience;
in sending or posting the communication, the defendant intended to cause harm to a likely audience; and
the defendant sent or posted the communication without reasonable excuse.
Definitions and exemptions
Posted means posted online.
A communication is a letter, article, or electronic communication.
A likely audience is someone who, at the point at which the communication was sent or posted by the defendant, was likely to see, hear, or otherwise encounter it.
Harm means psychological harm, amounting to at least serious distress.
When deciding whether the communication was likely to cause harm to a likely audience, the court must have regard to the context in which the communication was sent or posted, including the characteristics of a likely audience.
When deciding whether the defendant had a reasonable excuse for sending or posting the communication, the court must have regard to whether the communication was, or was meant as, a contribution to a matter of public interest.
Likely means there is “a real or substantial risk”.
The new offence would be triable either in a magistrates’ court or by a jury in the crown court.
The maximum penalty would be two years in the crown court and six months in the magistrates’ court.
The offence could be committed abroad by a person habitually resident in England and Wales.
There would be a specific exemption for news publishers.
This exemption would not cover readers’ comments published online.
News organisations
From time to time, journalists publish reports that are likely to cause serious distress to some readers. If these journalists act in good faith, it is unlikely they would face prosecution under this provision because they had not intended to harm readers and they would have a reasonable excuse: they were acting in the public interest.
For the avoidance of doubt, though, the Law Commission proposes a specific exemption for “news publishers”. As a term, that’s notoriously difficult to define. But the government has had a go at doing so in clause 40 of its draft Online Safety Bill, published in May, and the commission is happy to follow that. It covers regulated broadcasters and other news organisations that meet certain tests but excludes banned terrorist organisations and their supporters.
The media exemption would also apply to the new offence of knowingly sending false communications.
Offence of knowingly sending false communications
Section 127 of the Communications Act 2003 deals, in subsection (2), with people who knowingly send false messages. It’s an offence to do so “for the purpose of causing annoyance, inconvenience or needless anxiety”.
The Law Commission proposes replacing sections 127(2)(a) and (b) with a new harm-based offence. The prosecution would have to prove that:
The defendant sent or posted a communication that the defendant knew to be false;
In sending the communication, the defendant intended to cause non-trivial emotional, psychological or physical harm to a likely audience; and
The defendant sent or posted the communication without reasonable excuse.
Definitions and exemptions
Posted means posted online.
a communication is an electronic communication, letter or article of any description.
a likely audience is someone who, at the point at which the communication is sent by the defendant, is likely to see, hear or otherwise encounter it.
Hoax calls
Under section 127(2)(c) of the Communications Act 2003, it’s an offence for a person to persistently make use of a public electronic communications network or the purpose of causing annoyance, inconvenience or needless anxiety.
That would now criminalise someone who repeatedly sends texts or WhatsApp messages to annoy another person, even if the recipient ignored them and was not annoyed. But the provision is mainly used to prosecute people who make hoax calls to the emergency services. The Law Commission recommends replacing it with a specific offence criminalising hoax calls.
Offence of sending threatening communications
The Malicious Communications Act 1988 criminalises threats. Originally, the Law Commission thought its proposed new harm-based offence, discussed above, would provide sufficient protection. But there has been an increase in threatening communications, not least to journalists. So the commission is now recommending a specific new offence.
The prosecution would have to prove that:
The defendant sent or posted a communication which conveys a threat of serious harm;
In conveying the threat:
(a) the defendant intended the object of the threat to fear that the threat would be carried out; or
(b) the defendant was reckless as to whether the object of the threat would fear that the threat would be carried out.
It would be a defence for the defendant to show that a threat to cause serious financial harm was used to reinforce a reasonable demand and the defendant reasonably believed that the use of the threat was a proper means of reinforcing the demand.
Definitions and exemptions
Posted means posted online.
a communication is an electronic communication, letter or article of any description.
serious harm includes serious injury, rape and serious financial harm.
Cyberflashing
Cyberflashing is a confusing term. It does not involve sending images that flash on and off — although the Law Commission recommends that intentionally sending flashing images to a person with epilepsy, with the intention of causing that person to have a seizure, should be made an offence. Instead, cyberflashing is a development of “flashing” in the sense of indecent exposure.
The exposure takes place in cyberspace because involves sending, electronically, an unsolicited image or video recording of a person’s genitals to another person. The image does not normally show the recipient’s genitals: the Law Commission is looking separately at taking, making and sharing of intimate images of people without their consent. Cyberflashing normally involves sending images of the sender or someone else.
Often, the recipient will not know who sent the image — or whose genitals it depicts. It’s possible for a stranger — on a bus, for example — to send images to someone nearby if both have a sharing app enabled on their phones.
That’s particularly disturbing because the sender is proximate as well as anonymous. Recipients of these images describe feelings not only of alarm and distress but also humiliation.However, the existing law does not deal adequately with cyberflashing, not least because of the difficulties of proving that the defendant exposed “his genitals”. On the other hand, any new offence must not be drawn too broadly. The commission offers an example: if it became an offence simply to send an image containing exposed genitals, that could criminalise sending a picture of oneself fully clothed on a busy nudist beach without the recipient’s prior consent. So the Law Commission is proposing a limited new crime.
Offence of cyberflashing
The prosecution would have to prove that:
The defendant (D) intentionally sent an image or video recording of any person’s genitals to another person (V), and
either
(a) D intended that V would see the image or video recording and be caused alarm, distress or humiliation; or
(b) D sent the image or video recording for the purpose of obtaining sexual gratification and was reckless as to whether V would be caused alarm, distress or humiliation.
There would be no need for the the image to be sent electronically: snail-mail would do. Or, for example, the defendant could drop the image into the victim’s shopping-bag.
The new offence would be an amendment to the Sexual Offences Act 2003 and would come with the normal requirements for offenders (such as notification to the police) and protection for complainants (such as special measures in court).
Anonymity
Under the commission’s proposals, cyberflashing would be added to the list of offences that attract lifelong anonymity under the Sexual Offences (Amendment) Act 1992. That would mean that the complainant could not be identified as the alleged victim, while alive, whether or not the defendant was charged or convicted.
As the commission says, that would bring cyberflashing in line with exposure, voyeurism and most other sexual offences:
In our view, not to extend automatic lifetime anonymity to an offence of cyberflashing would create unacceptable confusion and inconsistency. Automatic anonymity would ensure that victims of cyberflashing feel confident to come forward and report the offending, and that they do not see any lack of anonymity as a “barrier” to reporting.
These are persuasive points. But, as the commission acknowledges, there are practical and principled objections:
One practical concern is that in the case of a false allegation, a defendant may lose the opportunity to trace witnesses who could provide important exculpatory evidence regarding the complainant relevant to their case. More commonly it is argued that without anonymity for the defendant there is no parity of treatment and that this conflicts with the principles of open justice and fairness.
The commission considers, but dismisses, the suggestion that anonymity should be discretionary. In my view, more thought should be given to discretionary anonymity before the government reaches a decision.
A distinction needs to be drawn between two types of case.
The first involves two people who are known to each other. It should not be difficult to prove who sent the image. Anonymity will encourage the alleged victim to give evidence.
The second example is of someone who receives an image without knowing the identity of the sender. It might have come from someone on a bus; it might have been sent by someone at work; it might have been emailed by a complete stranger. Proving who sent it will be much more challenging.
What could happen in my second example? The recipient is asked who the sender might have been and identifies an individual or a group — such as “everyone on this bus” or “everyone who knows me at work”. The police seize suspects’ mobile phones and spend several months investigating. Eventually, all the suspects are exonerated: it turns out that the complaint acted maliciously and manufactured the evidence.
Given the impact of such allegations on the named suspects while they are under investigation — and the risk that the same complainant may make further malicious allegations in future — is it fair that the complainant should never be identified, even after conviction for an offence such as wasting police time? I think not.
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Advice to iPhone users: click the Settings app, scroll down to General, tap AirDrop and select Receiving Off or Contacts Only. Do not select Everyone.