March 13, 2017

On 1 September 2016, the Magistrates’ Court acquitted the Respondent, Kingsley Smith, of four offences alleged to have been committed in June 2015, each of sending by means of a public electronic communications network a message or other matter that was grossly offensive or of a menacing character, contrary to s 127 (1)(a) of the Communications Act 2003. In each instance the alleged offence was concerned with the posting by Mr Smith on the internet of a message attached to a YouTube video.

The Respondent was of interest to the Eastern Counties Terrorism Unit due to his attendance at extremist Islamic fundraising events. The charges all related to extremist messages attached to YouTube videos. For example, one of the charges involved a video entitled “The Islamic State”, which showed the nature of life in the Islamic State, including images of execution by crucifixion and beheading. To that the Respondent had attached the message “Allahu Akbar, kill the Kuffir”.

On an appeal by way of Case Stated, the High Court had to decide whether the District Judge had been right to find that the threats contained within Mr Smith’s posts were not menacing or grossly offensive.

Bearing in mind that, in deciding whether a particular message was grossly offensive the court needed to be very careful not to criminalise speech which, however contemptible, was no more than offensive, Mr Justice Sweeney found that, in terms of the actus reus, the District Judge had failed to ask himself the correct question. He should have asked whether, as a question of fact, taking account of the context and all relevant circumstances and applying the standards of a reasonable person in an open and just multi-racial and multi-faith society, it had been proved that a particular message was grossly offensive to those to whom it related or was of a menacing character. In other words, the judge should have asked himself whether the message in question would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it. It was clear, Sweeney J said, that it would.

Further, Sweeney J found that the District Judge had erred by inappropriately taking into account, and/or attaching too much weight to, matters that were of relevance on the particular facts of Chambers v DPP [2013] 1WLR 1833, but not on the facts of this case. Chambers had concerned a “tweet” about blowing up an airport that had been made in jest. This case was very different, Sweeney J said. The messages were clearly not a joke. There was no unbroken pattern of evidence. There was, unsurprisingly, no evidence from anyone who had seen the messages. It was perfectly reasonable for the police to prioritise other cases, and there was evidence that taking down things that were posted online was very difficult.

Accordingly, the District Judge had erred and the appeal was allowed. The acquittal was quashed and the case remitted to the Magistrates’ Court for a full retrial before another District Judge or Justices. (Director of Public Prosecutions v Kingsley Anthony Smith [2017] EWHC 359 (Admin) (24 February 2017) — to read the judgment in full, click here).