Scottow v Crown Prosecution Service

Section 127(2)(c) of the Communications Act 2003 criminalises the persistent abuse of a public electronic communications network for the prohibited purpose. It does not create an offence of posting online material merely because it is annoying, personal or offensive.

Communications separated by months, with different subject matter and no sufficient connecting course, cannot be aggregated to establish persistence. Where online speech is prosecuted, the court must apply Article 10 rigorously. A conviction requires a convincing and proportionate response to a pressing social need; it cannot rest on an assumption that only speech forming a proper public debate is protected.

Scottow v Crown Prosecution Service was an appeal by way of case stated from the appellant’s conviction at St Albans Magistrates’ Court for persistently using a public electronic communications network for the purpose of causing annoyance, inconvenience or needless anxiety, contrary to section 127(2)(c) of the Communications Act 2003.

The prosecution relied on social-media messages posted during 2018 and ten further tweets posted during a single conversation on 1 March 2019. The appellant challenged the charge as duplicative and partly time-barred. She also contended that the conduct was not persistent and that conviction would unjustifiably interfere with freedom of expression under Article 10.

The central issues were the proper scope of section 127(2)(c), whether the messages formed persistent conduct, and whether a prosecution based on the tweets was compatible with Article 10.

1. Appeal allowed. The court quashed the conviction and all consequential orders. Questions 3, 4 and 5 were answered in the appellant’s favour. It was unnecessary to answer the abuse-of-process questions.

2. Section 127(2)(c) of the Communications Act 2003 is directed at persistent misuse of a public communications network, not at the communication of information or ideas merely because they annoy or offend. Its paradigm is repeated nuisance use of the network, such as silent or prank calls. The relevant purpose must be the prohibited end of the communication; foreseeability that a person might see material online is not the same as such a purpose.

3. The 2018 and 2019 messages could not lawfully be treated as one continuous course. They were separated by several months and differed in character and subject matter. The 2018 allegations were therefore outside the six-month limit. The ten tweets of 1 March 2019, considered alone, were part of a moderately challenging conversation about public statements concerning an injunction. They were not persistent use of the network.

4. The District Judge also erred by treating the settlement and injunction as evidence of persistence, by failing to examine the purpose of each message, and by discounting blocking and tagging as relevant evidence of purpose. The recipient’s actual reaction could not prove the sender’s purpose, though it was relevant to the Article 10 proportionality assessment.

5. A prosecution for online speech interferes with Article 10. The protection of another person from persistent and unacceptable offence was a legitimate aim, but prosecution of these tweets was not necessary in a democratic society. The messages concerned a public figure’s public statements about an act of a public authority. They were largely innocuous and were not initially regarded as offensive. No pressing social need, or convincing and sufficient reason, justified conviction.

6. Bean LJ agreed. He added that, as a matter of domestic construction alone, section 127(2)(c) does not create an offence of posting annoying tweets. Decision-makers in criminal cases must give proper consideration to freedom-of-expression issues where they arise.

• High Court (Divisional Court). Appeal allowed by way of case stated; conviction and consequential orders quashed: [2020] EWHC 3421 (Admin).
• Magistrates’ Court at St Albans. The appellant was convicted on 7 February 2020 of an offence contrary to section 127(2)(c) of the Communications Act 2003.