How can a private Whatsapp chat cause public offence?
In March 2021, the public was horrified by the murder of Sarah Everard. Ms Everard was walking home through London at night when Wayne Couzens, a serving police officer, conducted a fake arrest for supposedly breaching Covid guidance. He then abducted, raped and strangled Ms Everard. Four months later, Couzens pleaded guilty to kidnap, rape, and murder. He was imprisoned with a whole life tariff that was upheld on appeal.
During that investigation, it was discovered PC Couzens had been a member of a whatsapp group with fellow police officers, named “Bottle and Stoppers/Atkin’s Puppets”. Members of the whatsapp group shared memes and messages containing racist, homophobic, ableist and sexually violent references.
During 2022, three members of the group were prosecuted at Westminster Magistrates’ Court over several days. On 21 September, PC Joel Borders and PC Jonathan Cobham were both convicted. They will be sentenced in November. A third officer was acquitted after calling defence evidence that the term “struggle snuggle” was not his sexual fantasy, but a colloquial term for a police restraint technique. https://www.bbc.co.uk/news/uk-england-surrey-62981675
The law contravened by PC Borders and PC Cobham was s127(1) Communications Act 2003. This is a summary offence, punishable by up to six months imprisonment and/or an unlimited fine. There is no right to a trial by jury. The section prevents the improper use of a public electronic communications network to send a grossly offensive, indecent, obscene, or menacing message.
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; or
(b) causes any such message or matter to be so sent.
Public electronic communications network
In the past, the courts have defined a “public electronic communications network” widely. Leaving racially offensive remarks on the voice machine at a Member of Parliament’s office was within s127:
DPP v Collins 2006 Lord Bingham: “the object of s127(1)(a) was not to protect people against the receipt of unsolicited messages that they might find seriously objectionable, but to prohibit the use of a public service for the transmission of communications that contravened the basic standards of society”.
In Chambers v DPP (2012) the Court accepted the principle that using the internet (Twitter) also constituted a public electronic communications network, although the s127 offence was not made out where a Tweet could reasonably be read as a joke “Crap! Robin Hood Airport is closed. You’re got a week to get your shit together otherwise I am blowing the airport sky high!”.
However, the principle is that almost all forms of electronic communication are within s127 simply because they are used by the public. It matters not whether the public have access to the particular words. Unlike harassment or malicious communications, there is no requirement for anyone to have seen the message, either directly or indirectly, and been grossly offended by it. Essentially DPP v Collins simply outlines an objective test: whether the message is grossly offensive given the basic standards of society.
Time limit to prosecute
Returning to the Couzens whatsapp group, the offending messages were exchanged in Spring 2019, but the officers could still be charged in 2022. This is because the offending conduct was within three years, and the Prosecution started within six months of the Prosecutor gaining knowledge of the messages. s127(5) of the Act applied:
s127 (5) An information or complaint relating to an offence under this section may be tried by a magistrates' court in England and Wales or Northern Ireland if it is laid or made—
(a) before the end of the period of 3 years beginning with the day on which the offence was committed, and
(b) before the end of the period of 6 months beginning with the day on which evidence comes to the knowledge of the prosecutor which the prosecutor considers sufficient to justify proceedings.
This means that any comments made over three years ago are statute-barred from prosecution under this section. But all such public or private chats exchanged within that period remain fair game. At the time of writing (September 2022) this includes the entire period of Covid restrictions: a note to all those who typed offensively during lockdown.
Returning to the Couzens whatsapp group trial, the chats from 2019 included posts discussing rape, domestic abuse and violence against women, as well as Muslims, ethnic minorities and people with Down’s Syndrome.
District Judge Turnock dismissed a defence application of no case to answer. On the point of who the recipients needed to be, she ruled that the legal test is whether they were grossly offensive to the people they relate to i.e. those from a “black and ethnic minority background, people living in certain areas of London, women, children, disabled and gay people” - rather than those who receive them. Interestingly, the Judge seems not to use the “basic standards of society as a whole” as in DPP v Chambers, but rather a hypothetical sub-group of those targeted in the messages.
The defence also argued that the messages themselves were very obviously banter between colleagues and never meant to be taken seriously – akin to the bomb hoax tweet in Chambers v DPP. However, given the pretty harrowing detail of the conversations this argument was also rejected.
However abhorrent these messages, this area of law has far-reaching consequences. The law now says that if you type out and send anything that would be deemed grossly offensive to the public, or a section of the public, were they ever so see it, then s127 has been contravened. This is the case even if you prove no one was offended because you sent it only to those who share your worldview. The ambit for criminality is now extremely wide. The ‘live’ prosecution period is three years. There is no right to a trial by a jury. As with all such elasticated laws, the only factors saving many from prosecution are:
- that the offensive chat is never shown to a prosecutor or,
- that the prosecutor decides that a s127 Communications Act charge is not in the public interest.
However, where certain material horrifies the prevailing public mood at the time, then a prosecution becomes very likely. The Couzens whatsapp group is a prime example. These messages led to public outrage, a media storm erupted, and prosecutorial steps promptly followed. Of course, the offensive messages were exchanged almost two years before PC Couzens murdered Ms Everard. Nevertheless, these were messages between men who must have hidden their private opinions from the outside world, as well as their perverted sense of humour. It was surely right to unmask and expose these views, particularly as they were serving police officers.
However, the need for public accountability is not the same as the need for a prosecution. Criminalising private conversations is a big step. To view this another way, it would not be illegal to use these very same words privately in a verbal conversation. No prosecution would follow. So why are the consequences so drastically different just because the medium used was electronic?
When the Communications Act was passed in 2003, social media barely existed. Parliament did not countenance people being prosecuted for making comments within the myriad of online spaces we now use. But the way s127 has developed brings far-reaching consequences for every whatsapp group, every texted joke between friends, and every private chat room.
If you stand accused by police of sending offensive messages online, or by any electronic medium, please contact our Crime and Regulatory team.