Lynsay Watson, R (on the application of) v The Chief Constable of Greater Manchester Police

For communications offences requiring a message to be grossly offensive, offensiveness, bad taste or distress is insufficient. The court must assess the content and context objectively, giving substantial weight to freedom of expression and tolerance of opinions that may offend or upset. Political and public-interest speech receives particular protection. Police and prosecutors should proceed only where criminal liability is sufficiently established and interference with Article 10 rights is necessary and proportionate. Speech concerning controversial gender-recognition issues did not cross the gross-offensiveness threshold merely because it was abrasive, distressing or expressed in shockingly bad taste. A decision to take no further investigative action was therefore lawful where further investigation or prosecution would unjustifiably interfere with Article 10 rights.

The claimant sought judicial review of a police inspector’s decision to take no further action concerning social-media posts by the interested party about the murder of a transgender child, gender identity and the wording of the child’s death certificate.

Permission was granted on the ground that the police had incorrectly applied the law. The interested party was later joined and applied to strike out the claim because he had not been identified or served at the outset. The central issue was whether the police had erred in concluding that the posts were not objectively grossly offensive, such that further investigation or referral for prosecution would have been justified consistently with Article 10.

1. Strike out. The application to strike out was refused. Although the interested party had been joined late, the failure was not entirely attributable to the claimant. The interested party had received the relevant material and transcript and had been given a fair opportunity to make submissions. Any prejudice was mitigated as far as possible. Strike out is a draconian remedy of last resort, and the threshold was not met. The application was in any event academic because the claim failed on its merits.
2. Grossly offensive communications. Under section 1 of the Malicious Communications Act 1988 and section 127 of the Communications Act 2003, a communication must be more than offensive, in bad taste or even shockingly bad taste. The assessment is objective and requires attention to both content and context. The principles in [2024] EWCA Crim 25 were applied.
3. The immediate context was the murder of a transgender child and was highly sensitive. The wider context was an ongoing, complex and multi-faceted public debate about gender recognition. The posts expressed opinions about the alleged weaponisation of the murder and about biological sex and pronouns. Those opinions were controversial and abrasive, but they were opinions on matters of public interest. They did not cross the gross-offensiveness threshold.
4. Article 10. Freedom of expression protects statements that offend, shock or disturb. Political and public-interest speech attracts particular weight. Police and prosecutors should proceed under the relevant communications offences only where interference with freedom of expression is necessary and proportionate. Further investigation here would have been an unjustified interference with the interested party’s Article 10 rights.
5. The claimant’s arguments concerning Article 17, Articles 3, 8 and 14, harassment and public-order offences did not alter that conclusion. Even if other offences might arguably have been disclosed, taking further action would remain unjustified in the circumstances. The claim was dismissed.