R v Thomas Casserly

Where a prosecution under Malicious Communications Act 1988 section 1 concerns protected political expression, the statutory language must be interpreted and applied compatibly with Article 10. Whether a communication is grossly offensive requires an objective assessment of its content and context. Great weight must be given to political speech and to the tolerance expected of public office-holders. The communication must go well beyond robust political scrutiny before criminal liability is proportionate.

The statutory requirement of a sender’s purpose requires proof that causing distress or anxiety was a motivating objective. Foresight that distress was likely is insufficient. A jury must receive directions which fairly reflect those requirements.

R v Thomas Casserly concerned an email sent by the appellant to a town councillor and copied to other councillors. The email criticised the complainant’s aptitude to serve as a councillor and referred to her disabilities. The appellant accepted sending it, but maintained that it was political criticism protected by Article 10.

At Chester Crown Court, the appellant was convicted of sending a grossly offensive electronic communication with a purpose of causing distress or anxiety, contrary to section 1(1)(b) of the Malicious Communications Act 1988. The jury were directed to decide whether the email was grossly offensive by ordinary standards and whether the appellant intended to cause distress or anxiety.

On appeal, the central issue was whether Article 10 required a proportionality-sensitive interpretation and application of section 1, and whether the jury directions adequately reflected that requirement.

1. Appeal allowed; conviction quashed. The appellant’s email was an exercise of freedom of expression. It was political in both context and content, and was not mere meaningless abuse. Offensive, upsetting or shocking expression does not thereby fall outside Article 10.

2. The criminal law does not automatically prevail over free speech. Applying the framework in Abortion Services [2022] UKSC 32, this was a case in which the ingredients of the offence did not themselves ensure proportionality. Section 1 of the Malicious Communications Act 1988 therefore required a Convention-compliant interpretation and application.

3. The jury had to assess whether the message was grossly offensive objectively, by its contents and context. It had to go beyond what is tolerable in society, consistently with fundamental values including free speech. Political speech carries particular weight. An elected councillor must have greater tolerance for robust criticism than an ordinary citizen. In a political context, the statutory term required an enhanced meaning: criminality could arise only where the communication went well beyond robust scrutiny of the councillor’s performance of public office.

4. The word purpose in section 1 does not mean mere intention, foresight, or a failure to consider likely consequences. The prosecution had to prove that causing distress or anxiety was at least one motivating objective of the sender.

5. There was sufficient evidence for a properly directed jury to find both that the message was grossly offensive and that causing distress or anxiety was one of the appellant’s purposes. The prosecution was therefore not unlawful and the case did not have to be withdrawn. However, the directions omitted the legal significance of free speech, the political context, the heightened threshold, and the restricted meaning of purpose. Merely summarising the appellant’s case was insufficient. Those omissions made the conviction unsafe.

The application to extend time for an appeal against sentence did not arise. The court expressed a provisional view that a retrial did not appear required in the interests of justice.

• Court of Appeal (Criminal Division): In R v Thomas Casserly [2024] EWCA Crim 25, the court allowed the appeal against conviction and quashed the conviction.
• Crown Court at Chester: On 16 May 2022, the appellant was convicted after trial under section 1(1)(b) of the Malicious Communications Act 1988. He was sentenced on 20 June 2022 to a community order and a restraining order.