It’s SU election season as I write – during which pretty brave students open themselves up to all sorts of abuse from other students in pursuit of service.
They may, during the campaign, get abuse from other students – and once elected they may get further abuse. Especially since “online” became so easy, I’ve come across everything from death and rape threats to racist abuse aimed at international students – and some pretty nasty stuff even where it’s not been anonymous.
This abuse received by SU officers – online and in person, and both anonymously and not, is not something that gets talked about a lot – partly because they are often loathe to raise it, and partly because in some universities any incident concerning the SU is not able to be raised within the university’s procedures (something that needs clarification from OfS in the context of its heavily delayed response to its consultation on Harassment and Sexual Misconduct).
And it’s to NUS’ credit that its work a couple of years ago started to push the message to student leaders that it shouldn’t “come with the territory” just because, in this little part of the world, they are effectively public figures.
But it’s on the minds of SUs again in the context of the Free Speech Act, as they struggle to discern what the circumstances are that would allow them to set out rules for expression beyond a free-for-all, and whether they will be allowed to respond to complaints concerning their members by imposing the Zero Tolerance (to hate speech, harassment and so-on) policies that they have long championed.
Democratic principles
I talked in this piece about the campus culture wars (and here in more detail for subscriber SUs) about a recent County Court case concerning the Green Party, in which various behaviours of party members that one of its executive argued amounted to harassment on the basis of his protected beliefs were pretty much excused by the judge – on the basis that while the Equality Act in theory forbids unfavourable treatment based on belief, interpreting it in that way had the potential to contradict the “democratic principles of the United Kingdom”, the safeguards established in the Human Rights Act, and other laws and regulations regarding elections:
For example, once every five years, throughout the United Kingdom, voters engage in an act of mass direct discrimination against other persons on grounds of the protected characteristic of belief by casting their votes in a general election. People may cast their votes for many reasons, but these include voting for a candidate because of the beliefs of that candidate or their political party, or voting to prevent a particular candidate from getting elected, e.g. by voting tactically, because of the beliefs of that candidate or their political party.
Both cases will involve the voter treating other candidates less favourably because of the beliefs of those candidates or their political parties. Candidates, party workers, and commentators in the mainstream media and the blogosphere will publicly encourage the electorate to support the candidates and parties whose protected beliefs best fit their own and reject the candidates and parties whose protected beliefs do not. That, in the United Kingdom at any rate, is how democracy works. I am satisfied that Parliament did not intend the EA to prohibit direct discrimination of that kind, as to do so would interfere with the foundations of a democratic society.
That case notwithstanding, the working assumption of SUs is that students engaging in directly discriminatory or harassing behaviours would and could fall foul of the “balancing” duties in the Free Speech Act and be capable of being restricted and referred to either SU or university disciplinary procedures.
But a new case heard in the High Court potentially brings that assumption into question.
In the courts
In R v Thomas Casserly, Thomas Casserly had taken a keen interest in local politics, frequently attending meetings of the Town Council and asking questions. One of his subjects of interest was the maintenance of Middlewich Cemetery.
Victoria Dominguez-Perez had elected as a Town Councillor for Middlewich in May 2019 – she is profoundly deaf, visually impaired and has a muscle-wasting condition. She had a guide dog, hearing aids and sometimes used a wheelchair – something that had been reported in a local online newspaper, the Daily Post.
In June 2020 Casserly sent an email (using a pseudonym) to Dominguez-Perez that included the following:
As a councillor you owe your position to the fact that Middlewich Labour were desperate to stand 12 candidates (any 12) against Middlewich First, but at the 11th hour they learned that your dog Toby was ineligible (meaning not allowed). With the best will in the world you don’t have the basic intelligence or aptitude to be a councillor, but to Middlewich Labour that didn’t matter because to them you are still a bum on a seat who supports them.
I was at the November 2019 Middlewich town council meeting where Mike Hunter had you publicly read out the motion. Although it was a very short motion he had to step in on two or three occasions as struggled to pronounce fairly simple words. Personally I thought it was very embarrassing that Mike put you in a position where you revealed you had the reading ability of a primary school child.
Middlewich has many problems which need addressing and the residents are looking to the councillors to have the knowledge, understanding and intelligence to improve the town for all residents. Therefore how does a councillor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?”
The email continued with a cut and paste of a press clipping and a link with some lines from the Daily Post outlining Dominguez-Perez’s disabilities. The email went on:
You’ve proved you’re prepared to ask me questions, so surely you should be prepared to answer mine! Regards, Harry.
Dominguez-Perez forwarded the email to the police for investigation. Following their investigation, Casserly attended voluntarily at Sandbach police station for an interview under caution at which he admitted sending the email, stated that he often questioned the Council to find out information or to hold people accountable, and argued that his intention in sending the email to the complainant was “to put her on the spot so that she can answer those questions.”
He said that he thought it appropriate for Town Councillors to explain their disabilities and to identify the reasonable adjustments that they required. He also said that elected representatives needed to have a thicker skin than others and to be accountable, and cited both a legal case, and the Nolan Principles for Standards in Public Life.
Nevertheless in January 2021 Casserly was charged with an offence of “sending an indecent or grossly offensive electronic communication with intent to cause distress or anxiety contrary to s 1(1)(b) of the Malicious Communications Act 1988”, and that his “purpose, or one of his purposes, in sending it was that it should cause distress or anxiety to the recipient or to any other person to whom he intended its contents or nature to be communicated.”.
In Court he was found guilty – and was later sentenced to a community order with requirements for 50 hours of unpaid work and a 10-day rehabilitation activity. A five-year restraining order was also imposed, restricting his freedom to contact Dominguez-Perez.
The original case
In the original case, Casserly defence disputed that the content of the email was grossly offensive or intended to cause distress or anxiety as alleged – relying partly on Article 10 of the European Convention of Human Rights:
[it] protects my freedom to hold opinions and to … impart information and ideas without interference by public authority… I believe that not [only] does Article 10 cover the contents of my email of 3rd June 2020, but that both my prosecution in this court case, and the belief shared by both the CPS and the Judge … that the best way to deal with my email is by way of a Restraining Order is an interference with my rights under Article 10.
The defence cited a number of previous cases – one which established that “freedom only to speak inoffensively is not worth having”, and another that resolved something we’ve heard repeatedly over the Free Speech Act – that:
…freedom of expression includes the right to say things which “right thinking people” consider dangerous or irresponsible or which shock or disturb.
That case also resolved that politicians acting in their public capacity should:
…possess a thicker skin and greater tolerance than ordinary members of the public”.
The “balancing act” that we often hear about in the Free Speech Act loomed large in the case – the judge interpreted the position as:
…Article 10 is obviously subject to offences in criminal law, eg Threats to kill etc.”.
As such, the judge “repeatedly set out to the appellant that freedom of expression was always subject to offences under the criminal law”, and “the appellant conceded as much”. So given Casserly had admitted responsibility for sending the email to Dominguez-Perez, the jury were invited to consider the sentence asking:
… how does a councillor with limited reading ability … feel they can make a difference”
…and to find that the view expressed in that sentence was grossly offensive, and that in sending it the appellant had intended to cause distress or anxiety to Dominguez-Perez.
Casserly’s defence relied on his right of free speech and the need for Dominguez-Perez to be accountable to the public, said that he had expressed an opinion about the complainant’s intelligence and aptitude based upon his dealings with her and observations of her since her election as a councillor, and said that he considered that her disabilities had an impact on her ability to perform her role – and that he was entitled to express this view.
He also argued that that the jury should be directed in such a way as to ensure that when deciding whether the email was “grossly offensive” they took due account of the public role which Dominguez-Perez had taken on and his free speech rights.
The judge declined to do so – and left the case to the jury on the basis that the key passage in the email was the last sentence, namely:
Therefore how does a councillor that has limited reading ability, profoundly deaf, and partially sighted feel that they can make a difference?
He said “the real question” was a simple one: “does that view fall foul of the law?” – identifying two key questions for decision as whether that sentence was “grossly offensive by reference to normal everyday language and standards of ordinary decent people”, and whether the appellant had intended at the time of sending the email to cause distress or anxiety.
On the offensive issue, he said:
…It wouldn’t be sufficient, for example, for you to decide that the message was, for example, rather rude. You will appreciate that that will not be sufficient to prove the case against the defendant.
And on the intent to cause, he said:
…The prosecution must also prove that one of the purposes of the defendant in sending it was that he should cause distress or anxiety to its recipient or to any other person to whom he intended its contents or nature to be communicated. The prosecution does not have to prove that anyone was actually caused distress or anxiety. Whether someone was or, indeed was not, actually caused distress or anxiety, as a result of receiving the message, is irrelevant to your considerations. It is the intention of the defendant, when sending the message, which is relevant, in this regard. To decide what the defendant’s intention was at the time of sending the message you need to consider what he did and said before, at the time of and, after the sending out of the email, and then draw conclusions from your finding about these things.
The jury returned a guilty verdict, and when sentenced the judge told him that the reason why he had sent the message was “totally irrelevant”. It was over an issue with the Town Council – although the appellant had the right robustly to challenge Councillors he had to do so “in a courteous and proper manner”. The jury had concluded that what he did “was not proper.” The judge asked rhetorically “Why should a councillor have to put up with such grossly offensive remarks?”
He said that the appellant had shown a complete lack of empathy for the complainant and no remorse, and having seen the victim and the “belligerent” way in which Casserly had approached the case, he was “quite satisfied” that the prosecution was right to pursue the issue.
An appeal ensues
In the subsequent appeal, the KC defending Casserly argued that the directions given by the judge to the jury failed to take due account the common law right to free speech, or the corresponding Convention right under Article 10.
Emphasising that the email was political in context and in content, the KC placed particular reliance on the reasoning of previous cases concerning the importance of political speech, and the narrow circumstances in which it can be interfered with.
In the appeal judgement, it was accepted that some forms of self-expression fall outside the scope of the Article 10 free speech right because they amount to no more than “vulgar abuse” and convey “no ideas and no meaningful information”, or for other reasons. And at the other extreme, information and ideas which aim at the destruction of democracy, or its fundamental freedoms are also not protected:
But the law does not require courtesy. It is trite law that speech does not lose protection just because the information or ideas that it conveys are offensive, disturbing or even shocking. Communications of that kind are within the scope of the right.
In a previous case a defendant was an anti-abortion activist who sent letters to pharmacies which sold the “morning after” pill where the contained images of aborted foetuses. That case had also involved being charged with an offence of sending an indecent or grossly offensive article – but in that case although it was agreed that the images were “shocking and disturbing”, the sending of them was an exercise of the right to freedom of expression:
[i]t was not the mere sending of an offensive article: the article contained a message, namely that abortion involves the destruction of life and should be prohibited.
So in this case, while the email may have contained passages that were “insulting, upsetting and offensive” in nature, the judge argued that its sending did not come close to an act aimed at the destruction of any of the rights and freedoms in the Convention. And nor could the email be treated as a meaningless communication that contained nothing other than abuse.
That left the question of whether the email was a criminal offence because it conveyed a message that was grossly offensive.
The judge found that the common law right to freedom of speech is “subject only to clearly defined exceptions laid down by common law or statute” and that Article 10(2) prohibits interference with the Convention right unless it is “necessary in a democratic society” for one or more of a limited number of legitimate aims – including “the prevention of … crime … [and] the protection of the … rights of others…”.
Crucially, the judge said that that does not mean that the criminal law “automatically or invariably” prevails over the right of free speech – interference with free speech is only necessary for this purpose if it corresponds to and is proportionate to a “pressing social need”.
The judge then sets out a sort of ready-reckoner for assessing cases of this sort:
- Whether a message is “grossly offensive” is a question of fact to be answered objectively by reference to its contents and context, not its actual effect.
- The question is whether the message goes beyond the limits of what is tolerable in our society.
- The answer must reflect society’s fundamental values. Those values include the great weight to be given to free speech, the need for tolerance of statements and opinions that some might find offensive or upsetting, and the special need for tolerance on the part of those in public positions.
- The context of the speech must be considered. In a democratic society political speech is to be given particular weight. The Strasbourg jurisprudence identifies a hierarchy of speech, with political speech at its apex. The greater the value of the speech in question, the weightier must be the justification for interference. The proportionality assessment must include some evaluation of the kind of speech under consideration.
- Accordingly, where freedom of speech in a political context is engaged, and there is a case to answer, it is essential that the offence be defined in terms which reflect the enhanced meaning of “grossly offensive”.
- In order to establish that at least one of the defendant’s purposes was to cause distress or anxiety, it is not enough for the prosecution to prove that the message was likely to have that effect and that the defendant knew or foresaw this, or that he gave no thought to the matter; the prosecution must prove that at least one of the defendant’s objectives was to bring about that consequence. The offence is committed only if causing distress or anxiety is at least one of the defendant’s “purposes”. “Purpose” is not to be treated as synonymous (and interchangeable) with “intention”.
Long story short, because the jury was directed that (rather than being allowed to decide for itself whether or not) the email conveyed a grossly offensive message and that at least one of the sender’s purposes in sending it was to cause distress or anxiety to the complainant, the conviction was quashed.
Implications
Does any of this matter? This case concerned the Malicious Communications Act 1988 rather than harassment under the Equality Act, and concerned a Town Councillor rather than an elected SU officer.
It’s not immediately clear that what goes on at a university or within an SU would be viewed in a similar “democratic” way to the interactions between a resident and Councillor, and it’s not clear whether an SU or a university might reasonably set “zero tolerance” standards of behaviour related to protected characteristics for the student community without falling foul of the “free speech within the law” confection in the Free Speech Act.
What is clear is that this is another case in which the idea that “democratic” speech – even if offensive – is pretty hard to argue is something that can or should be interfered with. If that was the case for us, a student sending offensive emails to a woman SU President questioning her ability to handle negotiations with the VC on the basis of her “overly emotional brain”, or a student accusing an international student of lacking sufficient English skills or cultural understanding to represent home students would need to have their right to do so “promoted” and “secured” under the Free Speech Act rather than questioned or restricted.
There are all sorts of potential implications – for SU “No Confidence” procedures, nasty emails send to SU leaders and potentially for universities thinking through how to handle open letters or campaigns if a judge was to similarly accept that universities and/or SUs have the character of a democratic environment in which those with a profile should have a “thicker skin than others” and be in some way accountable.
As such, we might expect students and/or staff accused of any number of disciplinary offences will be reaching to cite this case to Arif Ahmed come September 1st. The case for better guidance has never been stronger.
