Jonathan Cobban v Director of Public Prosecutions
| Jurisdiction | England & Wales |
| Judge | Lady Carr of Walton-on-the-Hill,Mr Justice Saini |
| Judgment Date | 26 July 2024 |
| Neutral Citation | [2024] EWHC 1908 (Admin) |
| Court | King's Bench Division (Administrative Court) |
| Docket Number | Case No: AC-2023-LON-000697; CO/0543/2023 |
[2024] EWHC 1908 (Admin)
The Lady Carr of Walton-on-the-Hill
THE LADY CHIEF JUSTICE OF ENGLAND AND WALES
and
THE HONOURABLE Mr Justice Saini
Case No: AC-2023-LON-000697; CO/0543/2023
IN THE HIGH COURT OF JUSTICE
KING'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
Nicholas Yeo and Charles McCombe (instructed by Reynolds Dawson Solicitors) for the Appellants
Jocelyn Ledward KC and James Boyd (instructed by Crown Prosecution Service Appeals Unit) for the Respondent
Hearing date: 26 June 2024
(subject to editorial corrections)
This judgment was handed down at 10:00am on Friday 26 July 2024 in Court 4 and by release to the National Archives.
Lady Carr of Walton-on-the-Hill, CJ and
This judgment is in 13 sections as follows:
| i. | Overview: | paras.[1]–[5] |
| ii. | The Proceedings in the Magistrates' Court: | paras.[6]–[9] |
| iii. | The Messages: | paras.[10]–[14] |
| iv. | The Case Stated: | paras.[15]–[21] |
| v. | Legal Framework: | paras.[22]–[45] |
| vi. | The Parties' submissions on construction: | paras.[46]–[48] |
| vii. | Actus Reus: | paras.[49]–[62] |
| viii. | Mens Rea: | paras.[63]–[73] |
| ix. | Convention rights: | paras.[74]–[110] |
| x. | Summary of conclusions: | para.[111] |
| xi. | Answers to the Questions: | para.[112] |
| xii. | Sentence: | paras.[113]–[128] |
| xiii. | Conclusion: | para.[129] |
I. Overview
This appeal concerns electronic messages sent between serving officers of the Metropolitan Police Service (“MPS”) who were members of a WhatsApp group named Bottle and Stoppers (“the Group”). There were seven officers in the Group, including Wayne Couzens, who was convicted of the kidnapping, rape, and murder of Sarah Everard in June 2021. As members of the Group, the Appellants were involved between April 2019 and August 2019 in sending messages, and responding to messages, with content which can fairly be described as abhorrent. We set out the relevant content of the messages at [8] below (“the messages”). The messages concerned the Appellants' policing duties and perspectives on those duties, and it is not in issue that their content was racist, misogynistic, sexist, homophobic, and disablist. No other members of the Group challenged the Appellants, nor did they express any concerns about the contents of the messages when received. Mr. Couzens' membership of the Group is relevant to these proceedings only in that it was as a result of his arrest and the subsequent inspection of his mobile telephone that the messages were discovered.
In its broadest terms, the question before us is whether the judge below was right to convict the Appellants of improperly using a public electronic communications network contrary to section 127(1) of the Communications Act 2003 (“section 127(1)”) (“the 2003 Act”) when they were engaged in private consensual messaging. The central features of such messaging included the following: the messages were sent within a closed group; they had a content which the recipients welcomed and did not find offensive but amusing; and the messages were never intended for any wider circulation, nor were they expected to be read by the types of person or communities referred to negatively in the messages.
It was held that the acts of sending the messages contravened the statutory prohibition in section 127(1) on using a public electronic communications network to send messages of a “grossly offensive” nature. Whether that was right turns principally on the correct construction of section 127(1).
WhatsApp is owned by Meta Inc., but messages on that platform are sent over the internet (comprising landline, optical fibre, and mobile phone networks) which, it is common ground, is a “ public electronic communications network” within the meaning of section 127(1).
This appears to be the first time that the application of section 127 of the 2003 Act (“section 127”) to private consensual messaging has come before the senior courts.
II. The proceedings in the Magistrates' Court
The matter comes before us on an appeal by way of case stated against the convictions, following a trial, of the First Appellant, Joel Borders, and the Second Appellant, Jonathan Cobban, before District Judge (MC) Sarah Turnock (“the judge”) sitting at the Westminster Magistrates' Court and then at the City of London Magistrates' Court. On 21 September 2022, Mr Borders was convicted of five offences of improper use of a public electronic communications network, contrary to section 127. Mr Cobban was convicted of three offences under the same provision. As set out in more detail below, the judge found that the messages each met the statutory requirement of being of a “ grossly offensive” character. She further found that the messages were intended to be jokes and were not intended to be taken seriously by the other members of the Group. There was no direct evidence that anyone who read the messages was offended. Although the judge found that the Appellants did not intend the messages to cause gross offence, she did find that the Appellants were aware of the risk that members of the public and the persons to whom the messages related would be grossly offended by the contents of the messages. The judge held that, at the very least, the Appellants had wilfully shut their minds to the grossly offensive impact that the messages would have had on the persons to whom they related. A third co-defendant, William Neville, also a member of the Group, was acquitted of two counts of sending grossly offensive messages in respect of which he had been jointly charged with Mr Cobban (who was also acquitted on those two counts).
The judge delivered two judgments which are appended to the Case Stated dated 6 February 2023 (“the Case”): (1) a “ half-time” ruling dated 29 July 2022; and (2) a detailed and impressive written judgment dated 21 September 2022 (“the Written Judgment”) containing her factual and legal conclusions in finding the Appellants guilty.
On 2 November 2022, the judge sentenced each Appellant to concurrent terms of 12 weeks' immediate custody in respect of each offence. The judge granted each Appellant bail, with residence and reporting conditions, pending determination of the present appeal. Independently of the challenge to their convictions, the Appellants also seek to challenge these sentences before us. That matter gives rise to certain procedural complications as we set out further below.
As noted above, at the time of the messaging in 2019, the Appellants were both serving police constables with the MPS. In due course, they each resigned: Mr Borders on 9 December 2020 and Mr Cobban on 28 November 2022. On 28 November 2022, a hearing took place under the Police (Conduct) Regulations 2020 (SI 2020/4), before a misconduct panel of the MPS and two other police services (“the Panel”). It was alleged that by sending and receiving these messages, the Appellants, Mr Neville, and three other officers in the Group had misconducted themselves in respect of the professional standards of Authority, Respect and Courtesy, Discreditable Conduct, Equality and Diversity, and Challenging and Reporting Improper Conduct. The conduct complained of did not rely on the fact that, by the time of the disciplinary proceedings, the Appellants had been convicted of criminal offences. On 9 December 2022, the Panel found the allegations proved and dismissed those officers who had not already resigned. The Panel also placed all the officers on the police barring list, which prevents their working in policing and certain other roles in the future.
III. The Messages
The messages and exchanges which are the subject of the convictions were in the following terms:
(1) 5 April 2019
Joel Borders (JB)
JB stated that he “ can't wait to get on guns so I can shoot some cunt in the face!” and in response to Jonathon Cobban (JC) who had referred to tasering cats, dogs and children, JB stated “ and a couple of downys?”
(“ downys” is a reference to those with Down's Syndrome)
(2) 25 April 2019
Joel Borders
In response to JC's comment that “ Kate” will “ look after you” JB stated “ She will use me as an example. Lead me on then get me locked up when I rape and beat her! Sneaky bitch.”
(“ Kate” was a fellow police officer of the Appellants)
(3) 21 June 2019
Jonathan Cobban and Joel Borders
As part of a conversation between JC, JB and another in which it was implied that JC had “ fingered a DV victim”, JC replied, “ That's alright, DV victims love it… that's why they are repeat victims more often than not” and to which JB responded “ No, they just don't listen!”
(“ DV victims” are domestic violence victims)
(4) 29 June 2019
Jonathan Cobban and Joel Borders
In a chat between JC, JB and another, JC referred to Hounslow as “ a fucking Somali shit hole. There goes pussy patrol…more like fgm patrol.” JC commented that when walking through Hounslow central “ it was like walking along a dulux colour code”. JB replied that “ feltham is worse! I went there the other week and I felt like a spot on a domino!” and refers to Hounslow as “ twinned with Baghdad”.
(“ fgm” refers to female genital mutilation)
(5) 7 August 2019
Joel Borders
In response to a comment that there had been three domestic violence cases that day, JB commented, “ I bet they all had one thing in common…Women that don't listen.”
(6) 9 August 2019 Jonathan Cobban
During a conversation between JC and JB in which JB referred to being “ paired up with the only gay on section!”, JC stated in response “ Oh yeah I dealt with one of those, hospital guard for some attention seeking self harming fag”
We set out the judge's findings of fact in relation to each message at [17] below.
At trial, the Appellants contended...
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