S v Crown Prosecution Service

For an offence under section 4A of the Public Order Act 1986, publication of threatening, abusive or insulting material on a publicly accessible website may cause harassment, alarm or distress even where the complainant sees it only later, after police or another person brings it to his attention. The material need not remain online when the distress occurs. The intervening act does not break causation where the original publication created the relevant risk and the defendant acted with the required intent. Section 4A contains no requirement that the conduct occur within the complainant’s hearing or sight. That requirement appears in section 5, but not in section 4A.

S was convicted in the Youth Court of an offence under section 4A of the Public Order Act 1986 after publishing on a publicly accessible website a doctored image and accompanying allegations concerning the complainant. The complainant knew that material about him was online but did not see it at the time. Several months later, police showed him a print-out of the image, and he then suffered harassment, alarm or distress. The Youth Court rejected a submission of no case to answer and stated a question concerning causation.

In the Divisional Court, S also sought to challenge intention. The court refused to entertain that new issue in the case stated and considered the causation question: whether the original publication caused the later distress despite the intervening police conduct and the absence of evidence that the material remained online.

1. The appeal was dismissed. The Youth Court was entitled to find a case to answer on causation.
2. The statutory words “thereby causing” required a sufficient causal nexus between the defendant’s publication and the complainant’s harassment, alarm or distress. That nexus was established. But for the publication, the complainant would not have suffered distress when the police showed him the image and informed him that it had previously been publicly available.
3. The passage of time and the police officers’ intervening conduct did not break the chain of causation. Once material had been intentionally placed in the public domain, the defendant took the chance that the intended effect would be triggered by an activist, an unrelated member of the public or a police officer acting without that intention. It was immaterial that the material was no longer shown to be online when the distress occurred.
4. Section 4A of the Public Order Act 1986 contains no equivalent to section 5’s requirement that the conduct be within the hearing or sight of a person likely to be caused harassment, alarm or distress. Accordingly, the complainant did not need to have seen the internet publication when it was made. The court considered that the same conclusion could follow even if the complainant were merely told what had been posted.
5. The challenge to intention faced an insuperable procedural difficulty because it was not covered by the case stated and no amendment or remittal had been sought. In any event, the District Judge’s formulation showed that intention had been found, and the creation, wording and publication of the image provided evidence from which that inference was clearly open.
6. The court made no costs order. An assessment order could be made if required in relation to publicly funded representation.

1. High Court (Administrative Court): dismissed the appeal by way of case stated from the Youth Court.
2. Youth Court at Harrogate: rejected the submission of no case to answer and convicted S under section 4A of the Public Order Act 1986.