Director of Public Prosecutions v Smith

For an offence under Communications Act 2003, section 127(1)(a), whether a message is grossly offensive or menacing is an objective question of fact. The court must consider the context and all relevant circumstances by reference to the standards of a reasonable person in an open, just, multi-racial and multi-faith society. A menacing message is one capable of creating fear or apprehension in a person of reasonable fortitude. Police inaction, delay, the absence of complaints and failure to remove online material may be relevant in an exceptional case, but their significance depends on the factual context. A tribunal must separately address the actus reus and the mens rea, including awareness that the message might have the proscribed character.

The Director of Public Prosecutions appealed by way of Case Stated against the acquittal of Kingsley Anthony Smith by District Judge Leigh-Smith at Luton Magistrates’ Court. The respondent had posted four messages on Google+ beside YouTube videos, including threats to kill or injure named and unnamed persons. He was charged with offences under section 127(1)(a) of the Communications Act 2003.

The District Judge found that the messages were empty bombast or ridiculous banter and were neither grossly offensive nor menacing. The central question was whether the District Judge had correctly assessed the character of the messages and the relevant mens rea.

1. The appeal was allowed. The acquittal was quashed and the case was remitted to the Magistrates’ Court for a full retrial before another District Judge or Justices.
2. Under section 127(1)(a) of the Communications Act 2003, the disputed actus reus required an objective factual assessment. The court had to consider the context and all relevant circumstances, applying the standards of a reasonable person in an open and just multi-racial and multi-faith society. A message was menacing if it would create fear or apprehension in a person of reasonable fortitude. The court also had to avoid criminalising speech which, however contemptible, was merely offensive.
3. The actus reus comprised sending a message by the defined means which was of the proscribed character. The prosecution also had to prove mens rea, namely the relevant intention or awareness that the message might be grossly offensive or menacing.
4. The District Judge had failed to apply the critical objective test and had given no reasoned conclusion on whether the messages were grossly offensive. Those errors fatally undermined the findings on the actus reus. He had also treated matters relevant in Chambers v DPP as carrying undue weight here. That case concerned a joke and an unbroken pattern of official and personal responses indicating that no genuine threat was perceived. The present messages were not jokes, and the surrounding evidence was materially different.
5. The District Judge had considered the respondent’s intention but had not recorded any consideration of awareness. That was a further error. Evidence of the respondent’s association with radical Islamists was admissible on this Case Stated appeal, particularly because it had obvious potential relevance to mens rea; no objection had been made at trial.

• High Court (Administrative Court): The appeal by way of Case Stated was allowed. The acquittal by Luton Magistrates’ Court was quashed and the case was remitted for a full retrial.
• Luton Magistrates’ Court: District Judge Leigh-Smith acquitted the respondent of four offences under section 127(1)(a) of the Communications Act 2003.