Miscommunication?

#FreeTheBexleyOne the hashtag goes.  ‘Man faces jail for swearing on Twitter’ the Twitterati say.  ‘Stop the assault on freedom of speech’ they implore.

Has there been an assault on freedom of speech? Is a man about to go to jail for swearing on Twitter? Should indeed the Bexley one, John Graham Kerlen, who tweets under the name @Sir_Olly_C, be freed, although he has not yet been sentenced? Is this a ‘bad law’ story demonstrating that the law is, as it sometimes can be, an ass, or is the story more complicated than may at first appear?

John Graham Kerlan was found guilty on Friday 13th April of an offence contrary to s127 Communications Act 2003, which reads:

(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.

I have asked the CPS for the charge sheet, which has been so far unforthcoming – should it arrive and render the rest of this post incorrect, I will of course post corrections.

The conviction relates apparently to two tweets, posted by Mr Kerlan. The first was a picture of a house belonging to a Bexley councilor, saying:

Which c*** lives in a house like this. Answers on a postcard to #bexleycouncil.

The second said:

‘It’s silly posting a picture of a house on Twitter without an address, that will come later. Please feel free to post actual shit.’

Globally, the legal test for whether a message is grossly offensive, or of an indecent, obscene or menacing character is the ‘reasonable man’ test – that is, would a reasonable man, seeing that message, consider it grossly offensive, or of an indecent, obscene or menacing character. In order to determine this, the judge puts himself in the place of a reasonable man and asks himself that question.

So, assuming we are reasonable people we can ask ourselves that question. Looking at those two tweets, would we say that they were:

Grossly offensive?

Indecent in character?

Obscene in character?

Menacing in character?

Using my internal moral compass, I say yes, no, no, yes.  The test for ‘grossly offensive’ is whether the message would cause gross offence to those to whom it relates, regardless of whether they were the recipient.  Would the reasonable man, looking at that, be able to say that the person to whom those tweets relate, would find them grossly offensive? I’d say so.

Are they menacing? Would the reasonable man, looking at those tweets, consider that the person to whom then related would find them menacing? Again, I’d say so – I certainly would.

Are they indecent, or obscene? I’d say not. But the law doesn’t require all points to be made out – the law requires the messages to be either grossly offensive, or indecent in character, or obscene in character, or menacing in character. That a message is more than one is a bonus for the prosecution frankly.

Finally, turning to the cries of assaults upon freedom of expression, it has to be remembered freedom of expression is a qualified right. The higher courts have already considered the balancing of freedom of expression with section 127, and came to this conclusion:

‘Section 127(1)(a) does of course interfere with a person’s right to freedom of expression. But it is a restriction clearly prescribed by statute. It is directed to a legitimate objective, preventing the use of a public electronic communications network for attacking the reputations and rights of others. It goes no further than is necessary in a democratic society to achieve that end.’

Lord Bingham, DPP v Collins (here).

In summary, swearing on Twitter is not a crime. Frankly, only a silly c*nt would think so. But being menacing, or being grossly offensive? That is.

 

 

62 thoughts on “Miscommunication?

  1. Hmmm.

    See I think that taken in context you are incorrect. That kind of language is common as muck on twitter, and is in no way out of the ordinary.

    Additionally, the communication was in no way directly pointed at a particular person.

    These are the most obvious points where I think you have drifted from a correct judgement.

    Sadly, the other point is this is a specifically political attack aimed purely at silencing a critic of the local government; if it is ok for Syrians to go around shooting government troops to make a change to how they are governed how about we allow a bit of freedom to express frustration against our own, corrupt, overlords.

    • Twitter isn’t the context though, that is the problem – the context is the reasonable man test, not ‘what does twitter think’. Did it not point to a person, when it attached to a photo of the person’s house? I disagree, I think it did.

      Also, in terms of the history, sadly, no evidence was given by the defendant, so now, that is mitigation, at best.

      • But surely the “reasonable man” test has to take into account where the comment is aired.

        For example, using the “C” word to a church minister in a church I would suggest that a reasonable person in that context would find it offensive. However if you were at a rap concert you would hear that word over and over again (along with other language and incitement that would be sure to offend the previously mentioned church minister) but the “reasonable person” in that location would definitely not find the language offensive.

        I really do fail to see how this could be construed in this context as threatening, malicious or intimidatory.

        However this is all a side show. As this is a politically motivated crime aimed at silencing a vocal critic of the local council, which has a long back history of attempts to use the local police and the courts to keep him quiet, tactics which have included our right lies and intimidation, one has to ask who is the law aimed at protecting?

  2. I won’t waste too much time disagreeing with you here, there have no doubt been lines and lines put down against this kind of half-logic.

    What I will ask is this. If “Olly Cromwell” had been in the pub when he said this, and held up a picture of the house to those listening; had someone realised who he was talking about either through previous listening to his conversations or deduction from the image and told the person THEY FELT was being referred to..and that person then called the police… do you think we would be looking at that person being put on trial and found guilty of being offensive and menacing?

    This whole discussion is not about whether or not the conviction is right (it clearly resides in a grey area that is all too easy to have to fall on the side of the prosecution due to lack of intent as a factor in defence), it’s about whether the law it’s based on is fit for purpose.

    • Well wait. The offence isn’t ‘can we say this in the pub’, the offence directly relates to electronic communications, so that is a false test. Asking if the words would fall foul if communicated differently isn’t helpful in this context.

      • The problem is that you are arguing whether it falls under the letter of the law. Everyone else is arguing whether it’s a good law – indeed Lee explicitly states this in the last paragraph.

        If the law means that something is Twitter is illegal, yet the same things said in public offline are legal, I imagine Lee’s point is that that’s a bad law.

  3. Excellent post.

    Even the US Supreme Court recognises there are limits to this right as Oliver Wendell Holmes said in Schenk v US, you can’t shout fire in a crowded theatre.

    And now we know you can’t tell people to post sh*t through a letter box.

    As restraints on my freedom of speech go, I’m not feeling too fettered by this.

    • “Even the US Supreme Court recognises there are limits to this right as Oliver Wendell Holmes said in Schenk v US, you can’t shout fire in a crowded theatre.”

      You can’t *falsely* shout fire in a crowded theatre.

      If there was a indeed fire, then you certainly would want someone to shout “fire”!

    • I disagree those are analogous. With the fire example, the original act alone causes harm, because people would reasonably believe it, and there is the risk of harm as a result. In this case, people still have to willingly and intentionally decide to post shit as a result.

      I’m sure there must be large numbers of similar comments online when it comes to elected politicians…

      • That’s not quite what I said. The fire example merely shows that even where freedo m of speech is enshrined as a coinstitutional right, it has limits where harm may be caused.

        However, the offence here is not that someone would decide to do as he says and post shit. The question here is what would a reasonable man make of the statement – would he feel it was menacing.

        As I understand it, and I stand to be corrected, this offence does not question whether someone actually would post shit. If the posts had amounted to that sort of action then I would have thought the charge would be incitement.

    • Plus the issue isn’t so much free speech, it’s being locked up in prison.

      I could spin it the other way: I’m personally not feeling too fettered by “people who post about posting shit online” – are you so worried that you think such people need to be locked up?

      • No, because no-one, as yet, has posted a picture of my house with those words attached. If they did I might feel differently. Whether I wanted them locked up would depend upon context, but if they were posting photos of my house, I would take it quite seriously.

  4. but is the c-bomb “grossly offensive” here? Does the c-bomb cause gross offence to the person to whom it relates?

    I can see the menace, and indeed offence – but I can’t see gross offence.

    Must be the company I keep ;-)

  5. One clarification please. Did the chap actually say “Which c*** lives…” or did he use the original anglo-saxon, which was then redacted to avoid your compounding the offence?

  6. Grossly offensive – So far, ‘intention’ is not part of the legal test, but my guess is that the intention was to be grossly offensive. He knew what he was doing, and knew that a reasonable man would find it offensive.
    Magistrates sentencing guidelines suggest a band B fine, or a medium level community order if there was moderate impact on the victim.
    That seems fair.

  7. s127 (2) is even odder – 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,

    So, if someone, knowing me to support the Villa, tweets that I am, secretly, a Birmingham City supporter to annoy me, he is guilty of any offence!! “Annoyance” FFS!

  8. Thanks for a helpful post.

    This isn’t something I know much about so I was intrigued by the definition of “menacing” in this context. The second tweet above is surely deeply unpleasant. It incites, but it isn’t a direct threat. I was wondering whether ‘menacing’ is arguable. I thought maybe it would require there to be some form of threat of physical harm to a person or person(s) (which seems more clearly at issue in the #TwitterJokeTrial).

    So checking back to DPP v Collins it appears that:

    “A menacing message, fairly plainly, is a message which conveys a threat – in other words, which seeks to create a fear in or through the recipient that something unpleasant is going to happen. Here the intended or likely effect on the recipient must ordinarily be a central factor in deciding whether the charge is made out.”

    “something unpleasant is going to happen” seems to me to be rather vague and could cover just about any possible adverse event. Placing significant weight of interpretation regarding the “degree of menace” on the effect the message has on the recipient opens up a further level of uncertainty. I guess that is no different from harassment legislation. But then I believe a harassment conviction requires a course of action rather than a single incident. I understand in the Bexley case there is a long back story. So perhaps there is more context here that is yet to emerge.

  9. I’m not sure if I see the menace either. “Feel free to…” is very different to “You should…” or “let’s all…”

    And while the logic of what you have posted is consistent, it is debatable whether this should have come to court in the first place. Whilst his vocabulary makes him an unsympathetic protagonist, he has been driven to anger by what he sees as questionable practices by elected officials, and their attempts to intimidate people investigating councillors. He was originally arrested for something quite different – and which he could prove was nothing to do with him. The current charges then seemed to arise as a face saving measure by authorities who had been made to look stupid (incidentally a theme common to Paul Chambers’ case).

    The full context of what led to his arrest, and his apparent Harrassment by councillors, apparent abuse of police powers and application for draconian restraining orders (to be applied even in the absence of guilt) are all relevant and mitigating here, and I suggest that further reading around this case is necessary.

    I am not anything to do with the legal profession. As a layman, I can assure you that cases like this undermine my faith in the police, the legal profession and the judiciary. How can I think otherwise when recent legal cases involving social networking technology show absolutely no understanding of it?

  10. Hi,

    I get all that. I read the original tweets and thought it was a bit silly posting a picture of the house, although he didn’t post the address.

    Just want to say that regardless of the back story of whether he was kicked out of council premises, whether he has written other blogs, whatever. This charge is about 2 specific tweets, so the rest is irrelevant.

    Also I think one point that doesn’t help is that the prosecution have apparently requested sentencing based on the word cunt, 45 days per letter. This is what makes it seem like he is getting sent down due to calling someone a cunt on Twitter.

  11. Though I do disagree with the “reasonable man”, or at least the appropriateness his test, I can’t disagree with the conclusions here.
    On the back story shodanalexm mentions: Beyond the Olly Cromwell tweets is another parallel and pending/potential prosecution that Twitter is largely missing, that of “Bexley council’s” alleged “obscene blogger”. The reasonable man in me is wondering if the CPS will now “have to” bring that to a prosecution where it can also be similarly reasonably man tested. Any views?

  12. I was at the trial.These tweets were clearly an attempt to cause fear.Calling someone a c is irrelevant to this conviction.If you post a photo of someone’s house and say you” will put the address later” then finish on ” feel free to post actual shit” is anybody going to seriously say that this was not menacing?.I did not hear the prosecution ask for 45 days for every letter and nobody is expecting a custodial.This guy had to be stopped and was already warned by the police about his tweets previously.He kept pushing the boundaries and even by his own admission in his defence statement knew he had crossed the line and tried to dismiss his tweet as a “throw away comment” yet never tried to undo the damage in the days after.

    • Several of the blogs have mentioned the prosecution seeking 45 days per letter of the word cunt. Whether they are regurgitating from each other (nice mental image) or not, I don’t know.

  13. The threshold for fear and menace seems extraordinarily low in British courts and seems to be used as a catch all for people in power to ‘get someone for *something*’ when they have been made to look silly.

    Given that “Olly” had already been subject to treatment he considered to be abuse of his rights by members of an elected body, he was angry. He used the C word. Was that offensive? Yes. Was it *grossly* offensive? Ask Tim Minchin about his Pope song. The problem with defining gross offensiveness is that it is entirely subjective, and I would suggest needed a jury rather than a magistrate to decide. Especially a magistrate who may have known the subject of the tweet socially (the trial was moved from Bexley to Bromley for exactly that reason, and moved back at short notice and apparently without explanation to an outsider that looks a bit dodgy).

    So does it satisfy your test a) ? Well I think that’s questionable.

    Sorry, a bit long, and I’ll reply to point d) after putting my son to bed!

    • Sorry but this case was dealt with by a district Judge not a magistrate.The C word in isolation was not what was considered grossly offensive it was the collection of menacing words and the photo.Why does everyone think that it all relates to the C word? As for he was angry,the councilor happend to live opposite and had no adverse dealings with this man.He just became the target of this abuse simply because he lived opposite.The law has to protect people from this sort of clear Menace.These tweets were put out on an activists account followed by other disgruntled people.If your house featured on it with an invitation to post shit would you not feel menaced and entitled to protection from the law?

      • A provable incitemnt to ‘post shit’ in the literal sense would be covered by the law against criminal damage, but that charge was dropped for some reason. Saying it is ‘offensive’ or ‘meancing’ is far too subjective for my liking.

          • ‘Menacing’ is a weasel word in this context. It entirely depends what the alleged ‘menace’ is.

            In the offence of blackmail, menace means pretty much any detriment, lawful or otherwise, because making demands with menaces is rightly a crime, unless the demands are reasonable.

            But to suggest any meance is a crime even without extortion is absurd, unless the menace is serious enough to amount to a stand alone crime, in which case it can be prosecuted if proved. I don’t think it was proved he literally wanted faeces delivered in this case. Also, I believe he was convicted of causing offence, not menace, in any case.

    • I completely agree about juries. These cases would benefit greatly from jury scrutiny. We’ve seen several UK riot communications cases fail when the charge was something from the Serious Crime Act because a jury saw through the BS. There was one case that clearly never even should have passed the evidential stage of the CPS Full Code Test as the Crown Court judge instructed the jury to acquit. s127 presents a real problem to micro-blogging in that it seems to have created offences where there is no parallel in other forms of speech.

  14. The trouble is that in modern standard English usage, adding a word such as ‘actual’ or ‘literally’ means the opposite of what it should mean on a strict logical reading. So saying ‘post actual shit’ could well be a bit like saying ‘I’m literally going to crucify the opposition’.

    But judges seem to be applying something like the ‘literal rule’ when deciding these cases. It was obvious to anyone reasonably well informed of the true situation that Paul Chambers was not threatening to blow up an airport. But judges are purporting to ‘find as a fact’ that a certain phrase was menacing, based on a literal definition of the words, when this is really only an inference from facts, and a highly subjective and context-sensitive inference.

    My other problem is that these prosecutions all seem highly politically motivated, based on the prosecuter’s opinion of the merit, or lack of merit, of the words. This forms no official part of the offence, but it is a fair bet that Stewart Lee will not be prosecuted for similarly worded remarks about Top Gear and a Mail columnist. This adds a very inappropriate amount of discretion about who this offence is used against. A mere change of administration could see the likes of Stacey go free and Lee imprisoned.

    • So what you are saying is that its now acceptable in law to take a picture of someones house and invite people to post shit to the house because if he didnt mean the house why would he put the picture of it alongside the tweet.I am afraid you are wrong and the judge was right and i am sure the appeal judges will uphold the conviction because otherwise its open season for the cranks!

      • I’m saying that if there is evidence of incitement to criminal damage then that offence should be charged. It shouldn’t be undercut by a weasel charge of being ‘meancing’. The s. 127 offence was designed to prevent nuisance telephone calls. It is being misused to prevent people saying bad things *about* people on the internet, which is a very different proposition and totally open to political abuse.

  15. I think there was a case to answer for menace, so I won’t argue that. However, I don’t see how you can say that the “Man on the Clapham Omnibus” would find the use of C to be grossly offensive, even if directed as an insult. It would certainly be offensive, but the term is of such common usage nowadays that gross offence cannot reasonably be made out. There seems to be no legal definition of gross offence, but the test that a message is liable to cause gross offence to whom it relates ought to be enough to disqualify it. I was recently called a c*nt by a cyclist because I failed to move my car off in time to enable him to get his bicycle up the median of the road when there was slow moving traffic. When, offended and angered as I was by this, I slammed the brakes, forcing him to swerve in order to avoid a collision, he graduated to “arsehole”. The C word did and does cause offence, but not gross offence. There would seem to be nothing special about the councillor that would make him any more susceptible to gross offence as a result of this particular insult. As I say, it is a very common one. I have more to say, but I need to go out so I’ll write another comment later.

  16. Ok, back. Apologies for syntax and punctuation, I’m using a phone and it’s not easy to review what I’m posting.

    Billy- the level of the judiciary is irrelevant. That it should land on one person to define the level of offensiveness when that person may well not be entirely independant should not be acceptable.

    Now to the menace. Menace if what exactly?
    Menace of revealing the councillor’s address? He didn’t. And as a councillor the address is a matter of public record anyhow.
    Menace of revealing who it is that Olly thought deserved to be called a C*nt? Well that’s hardly menacing, and I’m still not convinced that it was grossly offensive or even unjustified.
    Menace of having an army of Internet users posting poo through the door? Well, again I suggest you look at what was actually said. “Feel free to…” is NOT incitement to do something. “Why don’t you…” “I suggest you…” “wouldn’t it be great if we all…” “everyone should…”

    But “feel free to…” implies no instruction and no incitement. It implies that Olly won’t stop you if you tried.

    • You will never make a judge thank god! Your reasoning is preposterous.He never put the address but said he was going to so you can assume he intended to do it at some stage.I am not a legal but a member of the councillors family.If you are saying that this behavior is acceptable then the standards of decency in this country may well be going to the dogs.And what exactly do you mean when you say that calling him a cunt may not have been unjustified?

      • I’m not connected in any way with the case, but I have been following Olly On twitter for some time, and have read his blog and the “Bexley is Bonkers” blog. Both blogs have been concerned for some time about questionable practices at Bexley Council. There may well be nothing questionable about the conduct of council business, however rather than clarify and explain the various questions, the council appears to have intimidated people writing about it, and banned them from meetings, contrary to best practice suggested by Eric Pickles. Google “the Striesand Effect”.

        I believe the tweets in question were posted after one such council meeting, and as a councillor your relative would quite clearly be seen as partly responsible for the actions on the body on which he sits. Name calling happens when people are angry.

        May I ask exactly why your relative felt menaced?
        The photo was one of an unidentified door.
        His address was already public domain, so it can’t be the threat to reveal his address.
        I don’t believe there was a threat to post excrement, or incitement to do so.

        As a relative of the councillor in question you are well placed to know if his reaction was one of fear, or one of “I’ll get him for this!”

        If it was truly the former then why was Olly arrested for posts on the Bexley is Bonkers site which were clearly not his, and only later changed to encompass these tweets?

        • His reaction was that he felt that it needed to stop so he took the only action he could and informed the police.His wife on the other hand was scared and she is not a councilor.This man had been previously warned by the police in a letter that he should curb his blogs.He did not put the address of the house but said he would post it later so you can only assume that he intended to do so

          • He did not put the address of the house but said he would post it later so you can only assume that he intended to do so

            Which is completely irrelevant because councillor’s addresses and, frankly, that of their families who live with them, are a matter of public record.

            This might upset the councillor or their family but it is part of election law.

  17. A couple more things I wanted to say. Firstly, you point out that free speech is a qualified right do make an oblique reference to the balancing act required when Article 10 rights are curtailed. I don’t think you give enough time to the proportionality test though. Even if an offence is made out, a judge should acquit if he finds that a conviction would not be proportionate.

    Article 10.2 – “There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society…”

    …where “in accordance with the law” means several things including that “the law must be formulated with sufficient precision to enable the citizen to foresee the circumstances in which the law would or might be applied (Malone v United Kingdom (1984)7 EHRR 14)”.
    http://ukhumanrightsblog.com/incorporated-rights/articles-index/article-8-of-the-echr/

    This statute has seen the light of day in some cases recently but has not been applied consistently. It is arguable (and I argue strongly) that there is little useful guidance on how one must regulate one’s speech in online forums in order to avoid criminal liability and that it is far to easy to fall afoul of s127 without knowing or intending it.

    The “necessary in a democratic society” bit of 10.2 means:

    (1) that an interference corresponds to a pressing social need;
    (2) that it is proportionate to the legitimate aim pursued.

    It is hard for me to see how there is a pressing social need to stop people from slagging each other off using swear words or joking about blowing up airports, despite what we’re told. It’s hard to see how there is a pressing social need for an act which allegedly causes real menace to a person, but does not satisfy the test for a charge of causing alarm or distress, to be prosecuted and convicted in a catch-all manner. I do not see at all how a conviction over a message which is purported to have caused no actual menace whatsoever (Twitter Joke Trial) serves a pressing social need or is proportionate to the legitimate aim pursued given that it has not curbed such behaviour but has instead resulted in Spartacus-style displays of solidarity.

    The application of s127 to broadcast style communications on the internet seems to have created brand new offences for which there is no parallel in other forms of speech. Why is that? There is much wrong with this law as it is being interpreted right now and there’s very little mention of the Doctrine of Proportionality. Did it even feature in the judgement this time? That would be a first for the lower courts.

    • The quote I use on Article 10 is Lord Bingham in DPP v Collins – it is not me balancing it, it is him determining where the balance lies between Art 10 and s127. Of course, we are all hoping that we may get guidance in respect of this particular medium from the Chambers case, decision still awaited.

      • And I think the balancing is wrong now that this law is being applied to a new style of communication that its drafting wasn’t intended for. Its legitimate aim was to protect recipients against receiving communications they are likely to find objectionable.

        Generally speaking, people do not receive twitter style communications in a manner that is beyond their control. In a telephone call scenario the recipient is very much at the mercy of the caller unless they choose not to use the telephone at all. A telephone call happens in real time and its effect is much more immediate and difficult to ignore.

        In the twitter scenario, we choose how to compose our timeline and search for content. With a telephone call there is least an intended recipient. A person who tweets an update may not even have a recipient in mind.

        I know how to regulate my behaviour when I use the telephone or send an email. Don’t be nasty or abusive to the person I’m calling or writing to (the person to whom the message relates). I might make a mistake and phone or email the wrong person and that person might be grossly offended, but I didn’t intend that. On Twitter, we’re being told you can’t really say nasty things about anyone in case that person might find out and be grossly offended.

        Here’s something I put to another lawyer recently. Has there ever been a case where s127 or one of its ancestors has been charged against a person who received a telephone call (i.e. not the person who initiated the connection)? Also, let’s say I record a menacing or grossly offensive greeting message and someone gets my answer phone. Is that punishable under this law? Would it be an offence even if no one phoned me?

  18. A rather minor point, but it would be inappropriate for the Prosecution to “ask for” any sentence, whether that be 45 days per letter in the word cunt or whatever. This is not the US. It seems to me that there is some creative reporting at work here.

    • its not creative reporting its propaganda trying to rabble-rouse.I was there in court and there was no mention of it from the prosecution.Its the same as the mis-information being banded about this guy being convicted for calling someone the C word.Completely not true.The C word did not cause offense it was the posting of the photo along with the words that could easily be taken for inciting someone to post excrement.

  19. People aren’t claiming that merely swearing is illegal – that’s a straw man argument. The blogs people have been passing around have carried the details, making it clear it wasn’t simply swearing, so this isn’t news. But it is still a worrying precedent.

    Arguing that it falls under the letter of the law is irrelevant too – when much of the argument is that it’s a bad broadly defined law in the first place.

    I don’t know if “incitement to post shit” should be illegal, but if it is, I would hope the standard requires more than a flippant comment that could reasonably be a non-serious comment. If someone did post shit, they’d be the ones breaking the law.

    I’m not sure I would call that statement “menacing”, but if it is menacing, then it’s a bad law, and large numbers of comments that people post online every day are “menacing”.

    • Rubbish! You astound me.Its not just flippant comments its attached to a photo of the house.If it were merely words no-one would have cared but you are not interested in the facts you are just coming out with you own watered down version of what happend here.It seems that you are saying that you have to wait for shit to come through your letter before you can do something about it.Ridiculous!

    • I don’t know where you are looking, but yes, the original twitterstorm was that this conviction was all about swearing. This is the first post of two – this one explaining the situation and how it fits within law, the next will consider if s127 is fit for purpose, or if it is being stretched to the limits by what it is being used for.

  20. Billy, I appreciate what you are saying, and I agree that if the facts of his behaviour are as you say then there are a number of offences that Kerlen could properly have been prosecuted for.

    My outrage comes from the fact that to prosecute the s.127 offence, it is not necessary to prove any of this conduct. It is only necessary to prove ‘gross offence’ or ‘menace’, which is nonsense, because a huge range of legitimate free speech could be considered menacing in some way. For example, I consider the governments cuts to DLA grossly offensive and menacing, but I do not want to criminalize discussion of the cuts online. Such talk would never be prosecuted, but that involves an unacceptable political value judgment by prosecutors.

    It seems that once this offence is charges, if the accused has said something the judge will agree offensive there is no defence. This short-circuits his right to a fair trial for the conduct which is the real motive for prosecution, e.g. the alleged threats to smear faeces.

    • It is not for me to say what law he should have been charged with just that he should have been charged with something as what he did cannot be tolerated in a civilised society.The analyzing of wether this charge was the right one is not for me to say but it is for me to say that freedom of speech has in no way been affected by this case as some would like us to believe.People on here have been trying to play down what this man did but i am sure that the judge got it right.I have plagued this site for long enough now but i wanted to stick up for common sense!

  21. I would also like to clarify whether Billy or Milly have any comments on the claim that Kerlen was issued with a restraining order banning him form making ‘any criticism of Bexley council’.

    If this is true this further strengthens my belief that this prosecution was brought with improper motives. I very much doubt such an order would be available in civil proceedings, because of the rule in Derbyshire v Times Newspapers. Such a restraining order seems to go much further than even Derbyshire in that case wanted.

    It appears to me that the authorities trawled carefully for some scrap of conduct which could arguably amount to some kind of offence crime, a couple of charges along the way and substituting a new charge, mainly for the improper purpose of asking for this order. Remember that this is in the context of the council previously having the police send a warning letter over criticisms of the council to another blogger.

  22. I agree with the non-relatives of the Bexley councillor, named below who recognise that Bexley is Bonkers and other dissidents are in danger from malicious falsehoods to pervert the course of justice, and gross misconduct by abusive councillors & hench-persons promoted far above their capabilities especially the omnishambolic Met police, CPS and shoddy CJS. From personal experience I vouch that the menace is from the regime-upholders against anyone outspoken or getting too close.

    bradato kopele:” As this is a politically motivated crime aimed at silencing a vocal critic of the local council, which has a long back history of attempts to use the local police and the courts to keep him quiet, tactics which have included outright lies and intimidation, one has to ask who is the law aimed at protecting?”

    shodanalexm: “a harassment conviction requires a course of action rather than a single incident. I understand in the Bexley case there is a long back story. So perhaps there is more context here that is yet to emerge” :

    Agreed; for too long Bexley council has called the shots with £millions to mis-spend as wanted. Bexley community safety funding is either rationed or “disappeared” because “course of conduct” is not adhered to, hence unrecorded thereby distorting crime stats to claim this is the safest borough (if you are not a dissident or critic) The facts would reveal routine unchecked harassment by police, Bexley council and cronies. Has anyone checked out several flagrant conflicts of interest among councillors and their dirty tricks publicised on Bexley is Bonkers?

  23. ” He did not put the address of the house but said he would post it later so you can only assume that he intended to do so”

    But if he didn’t later state the address, where’s the offence? I’ve been looking at houses for sale online and even when given a location on Google Earth/ Street View to within 2 or 3 houses it can be very difficult to locate the actual property in question. If Kerlen had instead said, “On the Council website, you can find the addresses of Councillors’ houses, these properties are available for the posting of shit” that would I suspect be more specific than what he actually did, yet not be criminal. The whole thing seems to me to be hinging on such subtleties that an ordinary citizen would be hard put to find a dividing line.
    Also since it seems the judge wanted to use (as has been previously stated), the precise English meanings of words, you cannot then go on to make an “assumption” based on those words. If he didn’t post the address, fears/assumptions don’t come into it. In previous cases of actual death threats, the police have refused to act as no-one’s been killed yet!
    As far as sentencing is concerned for this silly verdict, since people have walked from court with laughable non-custodial sentences for obvious cases of manslaughter of pedestrians and cyclists caused by inattention, speeding, or not slowing when blinded by sunlight etc, any custodial sentence for what is a at worst a harmless bad judgement call by an angry non-violent man would prove that the law is indeed a ass. Even if someone did literally post shit through a letterbox, would it get them a custodial sentence? I’d have put such an offence at the near bottom of the malicious damage/threatening behaviour pantheon: possibly one up from egging. When is incitement more serious than the offence being incited?