Jonathan Cobban v Director of Public Prosecutions

Section 127(1)(a) of the Communications Act 2003 criminalises the use of a public electronic communications network to send a message which is objectively grossly offensive, even where it is privately and consensually exchanged. The offence is complete on sending; receipt, readership and the recipients’ actual reactions are generally immaterial. The mens rea is intention that the message be grossly offensive to those to whom it relates, or awareness that it may be taken to be so. A conviction must nevertheless be compatible with Convention rights. In this case Article 10 was engaged but the interference was proportionate. Article 8 was not engaged because the police officers had no reasonable expectation of privacy in messages which breached their professional obligations.

The appellants, serving Metropolitan Police officers, were convicted by magistrates of offences under section 127(1)(a) of the Communications Act 2003 arising from racist, misogynistic, homophobic and disablist WhatsApp messages exchanged in a private group. The messages were intended as dark humour, were welcomed by the group, and were not expected to reach the persons or communities referred to.

On an appeal by way of case stated, the Divisional Court considered the construction of section 127(1)(a), including the actus reus, mens rea and relevance of private consensual messaging. It also considered compatibility with Articles 8 and 10 of the Convention and challenges to the sentences.

1. Convictions. The appeals against conviction were dismissed. The court held that the reasoning in DPP v Collins [2006] UKHL 40 was binding and of general application.
2. The object of section 127(1)(a) of the Communications Act 2003 is to preserve propriety in communications over a public electronic communications network. The actus reus consists of sending a message, of grossly offensive character, by that network. It is complete when the message is sent, whether or not it is received or read.
3. Whether a message is grossly offensive is an objective question of fact, assessed from its content, context and all relevant circumstances by applying the standards of an open, just, multiracial and multifaith society. The actual reaction of recipients is not determinative and, on these facts, was irrelevant. The messages remained grossly offensive despite being intended as jokes.
4. The mens rea is established where the defendant intended the message to be grossly offensive to those to whom it related, or was aware that it might be taken to be so. It is unnecessary to prove that the defendant expected the message to be read by a person likely to be offended. The judge was entitled to find recklessness on the facts.
5. A court must consider whether conviction is a proportionate interference with Convention rights, applying section 3 of the Human Rights Act 1998 and Articles 8(2) and 10(2). Article 10(1) was engaged, but the messages fell at the bottom of the hierarchy of protected speech. Criminal prosecution was proportionate to the legitimate aims of public safety, prevention of disorder or crime and maintaining public confidence in policing.
6. Article 8(1) was not engaged. Applying the reasonable-expectation-of-privacy test, the appellants’ status as police officers, their professional obligations and the abhorrent content of messages concerning policing meant that they had no reasonable expectation of privacy in them.
7. Sentence. The court exceptionally treated the sentence challenge as judicial review, granted permission and refused the applications. The 12-week concurrent immediate custodial sentences disclosed no material error. Significant indirect societal harm, including loss of public confidence in the police, could properly be taken into account.

1. Westminster and City of London Magistrates’ Courts. The appellants were convicted on 21 September 2022 and sentenced on 2 November 2022.
2. High Court (Administrative Court). The appeals against conviction were dismissed. The court exceptionally dealt with the sentence challenges as judicial review applications and refused them.