Judges say free speech includes right to offend
Two judges have struck a blow to enemies of free speech after ruling that people should have the right to offend and even abuse each other without facing a police investigation. Presiding over a Court of Appeal case concerning the misgendering of a trans woman on Twitter, Lord Justice Bean and Mr Justice Warby ruled that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having.”
TWO judges have struck a blow to enemies of free speech after ruling that people should have the right to offend and even abuse each other without facing a police investigation.
Presiding over a Court of Appeal case concerning the misgendering of a trans woman on Twitter, Lord Justice Bean and Mr Justice Warby ruled that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having.”
They said it would be a “serious interference” with the right of free speech if “those wishing to express their own views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that felt offended or insulted.”
The judgment could have implications for constabularies seeking to bring charges over people’s opinions.
In February, a Freedom of Information request by The Daily Telegraph established that police in England and Wales had recorded 120,000 “noncrime hate incidents” over five years – averaging 66 incidents per day.
The figures emerged after the High Court ruled a police investigation into “transphobic” tweets was unlawful after Harry Miller, himself a former police officer, was contacted by Humberside Police to “check his thinking”.
In October, police closed an investigation into an interview with Dr David Starkey in which the historian told podcaster Darren Grimes “slavery was not genocide” because “so many damn blacks” survived. Both were questioned by police, but the case was dropped after further legal advice from the Crown Prosecution Service.
Although the latest judgment does not change the law, such an unequivocal ruling from the senior ranks of the judiciary could persuade judges in lower courts that freedom of expression must be protected.
It could also limit the vexatious use of legislation to inhibit freedom of speech i n Twitter spats. However, Simon Kempton, of the Police Federation, said this was “an area where we would like to avoid having any involvement, but there are always cases where individuals cross the line and cause some significant harm to others”.
The judgment was delivered by Lord Justice Bean and Mr Justice Warby, after Kate Scottow, 40, a mother of two from Hitchin, Herts, was found guilty in February under an obscure section of the Communications Act following Twitter exchanges with a trans woman who reported her for calling her a “racist”, a “pig in a wig” and “a man”.
Stephanie Hayden, 47, a lawyer from Wembley, London, obtained a gender recognition certificate in 2017 that recognised her in law as a woman.
Ms Hayden reported Mrs Scottow to police. Mrs Scottow was subsequently arrested and kept in police custody for 11 hours. The case attracted global attention, including from Boris Johnson, who said in February 2019: “You can’t police properly if officers are endlessly filling custody suites with mums whose crime is to have caused needless offence on Twitter. Whatever the rights and wrongs of this internet feud, we are wasting too much time and resource on cases like this.”
Last week Mrs Scottow’s conviction was overturned, and on Wednesday the appeal judges published their findings, which were critical of Margaret Dodds, the district judge in the trial at St Albans Magistrates’ Court. Mr Justice Warby said had the case “been approached by the judge in a legally correct manner, it should have been dismissed”.
He stated: “The Judge appears to have considered that a criminal conviction was merited for acts of unkindness and calling others names.”
But he found that there was a “fundamental tension” between speech that included “causing the person distress” and Article 10 of the Human Rights Act 1998, which expressly protected speech that offended, shocked or disturbed.
Although he stressed Article 10 “does not give free rein to anyone to be offensive”, he added, “the context and manner i n which the i nformation is published are all-important”.
Mrs Scottow was originally charged with making a false statement but the CPS later changed the offence to “persistently making use of a public electronic communications network to cause annoyance, inconvenience or needless anxiety to another”, as set out by section 127(2)c of the Communications Act.
Mr Justice Warby said: “It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression.” He said he did not consider a prosecution “could be justified as necessary in a democratic society”.
In the past two years, Ms Hayden has taken action against, among others, Graham Linehan, co-writer of the comedy Father Ted; Adrian Yalland, a barrister; Caroline Farrow, a Catholic commentator; and Louise Moody, an academic.
Mrs Scottow later said the verdict was “a victory for freedom of speech that confirms no one has the right not to be offended. This has been the hardest battle I have fought, that has had a profound impact on every aspect of my life, from my career to my health and my marriage.
“But it was necessary to enshrine one of the most fundamental rights of every living being in a democratic society –
‘Freedom only to speak inoffensively is not worth having’
the right to freedom of speech that is now routinely attacked at such a fundamental level.
“Women fighting for their rights against an aggressive LGBT lobby have been silenced for the past three years. I hope this judgment gives them hope.”
But Ms Hayden said the judgment “encourages online trolls to abuse, dox [publicly identify or publish private information about someone as punishment or revenge] or i ntimidate transgender persons.
“This is unfortunate and a kick in the teeth to the entire LGBT community.”
She added: “I do not blame Scottow. She was entitled to appeal against her conviction and congratulations must be extended.
“The higher judiciary have ordained that transgender people are legitimate targets. I will keep that in mind and respond accordingly.”
A spokesman for the CPS said: “The Court of Appeal’s judgment concluded there was not enough evidence to convict the defendant for persistently making use of a public communications network to cause annoyance, inconvenience or anxiety, determining that the timing and level of communication exchanged online did not constitute a criminal offence.
“This is a complex area of law and we will carefully consider the judgment, specifically in relation to comments made online and associated issues of free speech.”
Toby Young, founder and director of the Free Speech Union, said: “Let’s hope this judgment sends a message to chief constables ... They should be policing our streets, not our tweets.”
Kate Scottow’s successful appeal against her conviction for offending a transgender activist on Twitter should be a free speech watershed. It is incredible that the mother of two was ever investigated: when the case first surfaced, Boris Johnson, writing in this newspaper, asked how police had found the time during a spike in knife crime. Even a lay person could tell the original guilty verdict was based upon a bad reading of the law. The first judge, Margaret Dodd, had told Ms Scottow that she broke a rule that adults teach children, “to be kind to each other and not call each other names”.
But this is not a playground. It is the idea that someone can call the police when their feelings have been hurt that is truly immature – and Orwellian. Reviewing the verdict, Mr Justice Warby said the case against Ms Scottow should have been dismissed and that his colleague, Judge Dodd, “appears to have considered that a criminal conviction was merited for acts of unkindness and calling others names”. It is easy to imagine how a weaponisation of etiquette could be used to silence critics and opinions one does not want to hear.
This time the court got it right, noting that “free speech encompasses the right to offend, and indeed to abuse another”, adding: “Freedom only to speak inoffensively is not worth having.”
Police forces must take note: it is now established that being rude on Twitter is not automatically grounds for investigation. The authorities should exercise common sense, and err on the side of the famous dictum that one does not have to like what someone says to defend their right to say it.