Karsten v Wood Green Crown Court

Whether a message is menacing under section 127 of the Communications Act 2003 is a question of fact judged in its context and all relevant circumstances. The statutory threshold is high. Words that are nasty, abusive or antisemitic may remain merely offensive unless they create the required apprehension or fear and the necessary mental element is proved. Context cannot include matters which the trial court has not found or has expressly disregarded. Voice identification requires particular caution, but a conviction may safely rest on lay recognition where the court applies the appropriate safeguards and finds the evidence reliable.

The appellant was convicted by Tottenham Magistrates Court of sending a menacing message by a telecommunications network, contrary to section 127(1)(a) of the Communications Act 2003. The Wood Green Crown Court reheard the case on appeal and accepted the complainant’s identification of the appellant’s voice during an anonymous call. It rejected the allegation that the words were grossly offensive but held that they were menacing.

The appellant appealed by way of case stated. The questions were whether the voice identification was sufficiently reliable and whether the words, in the context found by the Crown Court, were menacing.

1. Voice identification. The first question was answered affirmatively. The Crown Court had directed itself in accordance with R v Turnbull [1977] QB 224 and the additional caution required for voice recognition. It considered the expert evidence, the possibility of error, the quality and duration of the speech, the gap since the witness had heard the appellant, and the parties’ close contact over six weeks. The appellant’s admission that he knew who had made the calls provided some corroboration. There were ample grounds for finding the identification reliable.
2. Meaning of menacing. The approach in DPP v Collins [2006] UKHL 40; [2006] 1 WLR 2223 applies to menacing words as well as grossly offensive messages: the question is factual and must be judged in context and in all relevant circumstances. Chambers v DPP [2012] EWHC 2157 (Admin); [2013] 1 WLR 1833 established the relatively high threshold. The message must have a menacing character capable of creating apprehension or fear, and the prosecution must prove that the defendant intended that character or recognised the relevant risk.
3. The Crown Court had made no finding that the appellant was associated with the other anonymous calls and had expressly disregarded the second call. Those matters therefore could not supply the context for the first call. Standing alone, the words were nasty and antisemitic, but contained no express or implied threat and did not demonstrate the necessary mental element. The reasoning in R v Flynn and St John [2008] EWCA Crim 970; [2008] 2 Cr App R 20 supported the need for caution in voice identification.
4. The appeal was allowed, the second question was answered negatively, and the conviction was quashed. Lord Justice Laws agreed, adding that the criminal law should not criminalise speech which is merely offensive, however contemptible.

• High Court (Administrative Court): On appeal by way of case stated, the court allowed the appeal and quashed the conviction.
• Wood Green Crown Court: The Crown Court reheard the appeal from the magistrates’ conviction, dismissed it, and stated two questions for the High Court.
• Tottenham Magistrates Court: The appellant was convicted of sending a menacing message by a telecommunications network.