The prosecution of the online controversialist and comedian Count Dankula was a great mistake. Earlier this week he was convicted by the Airdrie Sheriff Court of sending a grossly offensive message by a public telecommunications network .

The Count, otherwise known as Markus Meechan, is a man of whom I had never heard, and nor, I suspect had you, until he made a video of his girlfriend’s pug giving a Nazi salute in response to him saying things like “Sieg Heil!” and “Gas the Jews!” Although showing the video must, I suppose, be regarded as a criminal act in Scotland, it is easily available online. Indeed, one of the predictable ironies of the case is that as a result of the prosecution it will have been viewed by millions more people than would otherwise ever have heard of it.

As a demonstration of dog training it is moderately impressive; as a comedy sketch it is embarrassingly unfunny, although of course comedy is a very personal thing. Some people, for example like Mrs Brown’s Boys, or that ghastly ratty comedian who gets paid millions through a Cayman Islands shell company.

The prosecutor did not find it funny. He described the video as:

“an odious criminal act that was dressed up to look like a joke.”

Mr Meechan explains on the video how his odious criminal act came about. He said that his girlfriend was:

“always ranting and raving about how cute and adorable her wee dog is, so I thought I would try to turn him into the least cutest thing that I could think of which is a Nazi.”

Sheriff O’Carroll who heard the case seems to have accepted the obvious point that the video was intended as a joke, even though he himself does not seem to have laughed, but he sternly concluded:

“the description of the video as humorous is no magic wand.”

He did not accept, as Mr Meechan argued, that the purpose of making the video was to annoy his girlfriend (though even if it had been I can’t see how that would be a defence). Instead, he decided, Mr Meechan had made the video in order to drive traffic to other material he had on You Tube. The Sheriff said that he had taken into account the right to freedom of expression, but that right, he said, “comes with a responsibility.” The video, in his view was “grossly offensive,” Meechan would have known that it would be found grossly offensive by many Jewish people, and he was thus guilty of the offence.

Normally speaking I would be reluctant to comment on criminal law of Scotland. Substantively, procedurally and evidentially it is quite different from English law and I profess to no expertise in the subject at all. As it happens, however, S.127 of the Communications Act 2003 (under which Mr Meechan was prosecuted) applies to England and Scotland, and it is reasonable to assume that the courts would interpret it in the same way in both England and Scotland, particularly as there have been decisions on the correct interpretation of the section from the highest court in both jurisdictions, the Supreme Court and its predecessor the House of Lords.

The relevant part reads as follows:

127 Improper 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;

One or two points need to be noted.

First of all, the crime is only committed when someone sends a “grossly offensive” message or other matter “by means of a public electronic communications network.” Being grossly offensive is not a crime if done privately, nor, indeed if it is done on a stage.

Secondly, the offence is not a new one. Although it is currently to be found in the Communications Act 2003, it has its origins in the almost identically worded s.10 (2)(a) of the Post Office (Amendment) Act 1935. The drafters of the 1935 statute had telephone and telegram communications in mind. As Lord Templemore put it in the House of Lords:

“I come now to what is probably the most important clause of the whole Bill … [it] is designed to give the Post Office staff protection in cases where, for example, people have indulged in improper or obscene language over the telephone to female telephonists. During the debate on the Second Reading in the House of Commons it was suggested that the public should also be protected and subsection (2) has been designed accordingly. In its three paragraphs protection is afforded not only against the improper use of the telephone but also the telegram. Cases have occurred where members of the public have received over the telephone messages of an indecent character, and even of a menacing character. There have also been instances where telegrams have been sent to persons intimating that somebody is seriously ill and when inquiries have been made by anxious friends or relatives the message has been found to be a complete hoax. There have also been cases of annoyance caused by persons who persistently use the telephone to make calls without reasonable cause—usually late at night. This subsection will give the Postmaster-General the necessary power to protect the public.”

We have come a long way from a statute aimed at criminalising hoax telegrams and offensive remarks to female telephonists, to one that is now used in an attempt to prevent offensive material appearing on You Tube. S.127 of the Communications Act has become one of the principal means by which the internet is policed. It has done so, though, with very little debate about whether it is appropriately worded to deal with modern issues. It is one thing to protect individuals from grossly offensive personal telephone calls; it is quite another to protect groups of people from what are in effect public performances.

What of the case itself?

No transcript has been produced of the judgment but it is easy to understand the Sheriff O’Carroll’s apparent reasoning. The offence, according to the leading case of Collins [2006] UKHL 40 has two elements:

(a) whether the “message (a slightly odd word to use in the context of a 3 minute video) is couched in terms liable to cause gross offence to those to whom it relates.” Gross offence is to be judged by “reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context.”

(b) The person who sends the message must “either intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so.”

If joking about gassing the Jews is not at least capable of being “grossly offensive” to some people it is hard to think of anything that would be. So the first part of the crime – the actus reus – is relatively easily established, although of course much is left to the sensibilities of the particular judge.

What of the second part, the mens rea, or mental element of the crime? It may well be that Mr Meechan did not intend to offend Jewish people, but the offence does not require any such intention. It is enough if a defendant is aware that people might take offence. You would have to be remarkably dense not to realise that they might do so.

The video was not an incitement to gas the Jews. It was not – with respect to the Sheriff – anti-semitic. Indeed, as Mr Meechan explained, its whole premise was that the pug had been trained to behave in the “least cutest” way possible. It is very difficult to analyse humour, and even more so of humour that you don’t yourself get, but the mockery was partly of pug-owners who see their somewhat ridiculous looking dogs as cute, and partly of Nazis. Despite that it was still tasteless and still offensive. Perhaps the Sheriff was wrong to ignore the fact that it was intended humorously; all things being equal a joke in poor taste is probably less offensive than a similar message delivered without humour. Context is very important. On the other hand he was right to say that humour alone cannot be a “magic wand” that excuses anything.

What this boils down to is that criticism of the Sheriff misses the point. Other judges might have reached a different conclusion, perhaps they will if Mr Meechan appeals, but given the relatively low bar set by the law his finding of guilt was probably justified.

But the fact that the Sheriff may have applied the law correctly is anything but reassuring. It is quite the opposite. It means that the problem is with the law, not with the individual Sheriff. It means that more people will be encouraged to complain that they have been offended by material posted online. It means the Scottish Police will have more of their time taken up by investigating such complaints, it means that Procurators Fiscal will be encouraged to prosecute more of them. It is indeed likely to restrict the freedom to speak freely online.

We should not over-state the case’s importance. For one thing, the English and Welsh Crown Prosecution Service has very sensible written guidelines on cases involving communications on social media that mean such a prosecution would have been much less likely to have been brought South of the border. For example:

“Prosecutors should only proceed with cases under … section 127 of the Communications Act 2003 where they are satisfied there is sufficient evidence that the communication in question is more than:

Offensive, shocking or disturbing; or

Satirical, iconoclastic or rude comment; or

The expression of unpopular or unfashionable opinion about serious or trivial matters, or banter or humour, even if distasteful to some or painful to those subjected to it.”

Pending any changes in the law the Airdrie Procurator Fiscal might be well advised to study these guidelines.

And the effects on free speech, even on Airdrieonians, can be exaggerated. You are still free to make grossly offensive remarks or jokes without fear of prosecution as long as you do not use a “public telecommunications system” to make them. Stand up comedians and theatre owners are still free to offend anyone they wish.

And why should they not do so? Causing offence – and on occasion even gross offence – can be perfectly justifiable. There is a great deal of difference between criminalising the giving of offence, and criminalising threatening behaviour or the incitement of hatred. Arguments that would once have taken place in smoky pubs now take place online, and are potentially visible to millions, especially if anyone wants to go looking for them. Taking offence at perceived slights, or at what might be considered outrageous expressions of opinion, or horribly tasteless jokes is something that happens literally all the time. Yet there seems no principled reason why an offensive joke that would be lawful in a theatre or cinema should suddenly become unlawful because it is on the internet. It is simply an accident of history.

One potent source of offence taking is, of course, religion. Even I, as a lapsed and almost entirely secular member of the Church of England, cringe when – as occasionally happens – I hear people mocking the religion in which I grew up. So I can well understand how devout believers could be deeply, or “grossly” offended by mockery of the central tenets of Christianity. And of course what goes for devout Christians also goes for devout members of other religions, not least Islam.

Cartoons mocking Mohammed have caused enormous offence, so great that fatwas have been issued to demand death for those publishing them, and of course the Charlie Hebdo terrorists murdered to avenge them. Very few Muslims would be tempted to murder, but unquestionably many peaceful and law-abiding ones would still be deeply offended by such cartoons. Anyone placing them online would be bound to realise that gross offence would be taken. Would they then be guilty of an offence under S.127? The answer is yes, unless, perhaps, they could argue that taking offence at Mohammed-mocking cartoons was not “reasonably enlightened by contemporary standards?” That would mean the law discriminating between the sensibilities of devout Muslims (whose real and genuine feelings of offence would be ignored) and those of others whose taking of offence was deemed sufficiently “enlightened.” Such distinctions are unpredictable, subjective and indefensible in a secular society. It is a law that could hardly have been designed better if its purpose was to generate grievances between different sections of society.

In 2006 Parliament debated the issue of amending the Public Order Act 1986 to criminalise acts tending to stir up religious hatred. The Government proposed to make it an offence to use “threatening, abusive or insulting behaviour with intent to stir up religious hatred, or being reckless as to whether such hatred would be stirred up.” It was defeated. The words “abusive or insulting” and “reckless” were all removed, largely because of the fear that criminalising the giving of insults would stifle free speech. The offence under S.29B of the Public Order Act now reads:

A person who uses threatening words or behaviour, or displays any written material which is threatening, is guilty of an offence if he intends thereby to stir up religious hatred.

In addition a specific defence was added as S.29J:

“Nothing in this Part shall be read or given effect in a way which prohibits or restricts discussion, criticism or expressions of antipathy, dislike, ridicule, insult or abuse of particular religions or the beliefs or practices of their adherents, or of any other belief system or the beliefs or practices of its adherents, or proselytising or urging adherents of a different religion or belief system to cease practising their religion or belief system.”

So we now have this strange arrangement: on the one hand you are specifically permitted to “ridicule, insult or abuse particular religions.” On the other, if you do so on a public electronic communications system – on the telephone or online, or even (if such things still exist) by telegram – you are liable to be prosecuted under S.127 for sending a “grossly offensive message.” If there is a rationale hidden in there I certainly cannot see it.

Mr Meechan was supported at court by the unappealing alliance of Tommy Robinson and Ricky Gervais. His supporters also include Breitbart News, James Delingpole and the rentaquote Tory MP Philip Davies. They are a motley and in some cases a rather unsavoury bunch, but on this issue they are right. The very savoury Adam Wagner, a leading human rights barrister, has also explained in very clear terms why he thinks the conviction is an indefensible restriction on freedom of speech.

It is time for Parliament to look again at S.127. It is wholly unfit for purpose.

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