Katherine Elizabeth Scottow v Crown Prosecution Service
| Jurisdiction | England & Wales |
| Judge | Mr Justice Warby,Lord Justice Bean |
| Judgment Date | 16 December 2020 |
| Neutral Citation | [2020] EWHC 3421 (Admin) |
| Date | 2020 |
| Docket Number | Case No: CO/3202/2020 |
| Year | 2020 |
| Court | Queen's Bench Division (Administrative Court) |
[2020] EWHC 3421 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
THE RT. HON. Lord Justice Bean
AND THE HON. Mr Justice Warby
Case No: CO/3202/2020
Diana Wilson (instructed by McLartys Solicitors) for the Appellant
John Riley (instructed by Crown Prosecution Service) for the Respondent
Hearing date: 10 December 2020
Approved Judgment
We direct that copies of this version as handed down may be treated as authentic.
Introduction
This is an appeal against conviction by Kate Scottow, aged 39. On 7 February 2020, after a trial in the Magistrates' Court at St Albans, she was convicted by District Judge Margaret Dodd of one offence of improper use of a public communications network, contrary to section 127(2)(c) of the Communications Act 2003. This provides that a person commits an offence if “for the purpose of causing annoyance, inconvenience or needless anxiety to another [she] … persistently makes use of a public electronic network”. Ms Scottow now appeals by way of case stated.
The case stated raises five questions, that fall into two main categories. First, there are questions of procedural error. It is Ms Scottow's case that the prosecution was an abuse of process, the charge was duplicitous, and partly out of time. Secondly, there are matters of substantive law. Ms Scottow says that those acts that were within time could not be described as “persistent” and, in any event, on a proper interpretation and application of s 127(2)(c), the facts alleged disclosed no case to answer, so and it was wrong in law to convict her on that factual basis. In this regard she relies, among other things, on human rights arguments founded on the right to freedom of expression.
At the conclusion of the hearing we announced that the appeal would be allowed and the conviction quashed. It follows that all orders made on conviction will also be quashed. These are my reasons. As I explain below, I would answer questions 3, 4 and 5 in Ms Scottow's favour. The conviction was vitiated by errors of law and for that reason cannot stand.
The factual background
The prosecution stemmed from complaints by Stephanie Hayden about messages posted on social media. Ms Hayden is a trans woman, with a public profile as an activist and advocate on transgender rights. It is common ground that she is to an extent a public figure. Ms Scottow describes herself as a radical feminist, and takes views that oppose some of those advocated by Ms Hayden.
The facts of the matter have not been as easy to identify as they should have been. This is a result of several factors: the fact that the prosecution did not obtain all the contextual material for the offending messages; the somewhat disorderly way in which the case for the prosecution was presented at trial; the diffuse nature of the arguments for the appellant; the limited fact-finding in the judgment of the District Judge; and the unorthodox nature of the case stated. The formal information that was laid before the Magistrates Court is not before us, nor is the summons, nor were the essential facts relied on set out in the prosecution opening, nor has anyone prepared a basic chronology of the key facts. An argumentative chronology was prepared by Counsel for the purpose of the case stated and Skeleton Argument, but this was not adopted nor commented upon by the District Judge. It unhelpfully weaves together facts which were, and those which are not clearly found by the District Judge, together with comment and submission, and contains some errors and omissions. To a substantial extent, it has been necessary to reconstruct events, using the papers before us. I am confident however that the following facts were established before the District Judge, or are agreed, or clear beyond dispute.
The acts of using a public telecommunications network that were relied on by the prosecution at trial consisted of 17 messages on social media: 16 tweets which Ms Scottow admitted making, and 1 message on Mumsnet from a username BurntMarshmallow, which she could not recall. The nature of Twitter and Mumsnet are by now well known. The former is a social media platform for microblogging, the characteristics and workings of which are set out in Chambers v Director of Public Prosecutions [2012] EWHC 2157 (Admin) [2013] 1 WLR 1833 [7–10] (Lord Judge CJ) and in the Appendix to Monroe v Hopkins [2017] EWHC 433 (QB) [2017] 4 WLR 68 entitled “How Twitter Works”. Mumsnet is a well-known website providing an online community forum for parents.
Seven of the messages relied on by the prosecution were posted in 2018 (“the 2018 Messages”). The sequence of key events during 2018 is as follows.
(1) On 9 September 2018, Ms Hayden, using her Twitter handle @flyinglawyer73, posted a tweet which started: ‘You know not so long ago people like you had no civil rights! Yet you…’ Ms Scottow using her Twitter handle of @bustedwench, tweeted in response as follows (“ Tweet 1”):-
“Let's hope they take a serious stance on your racism”
Evidently, she took Ms Hayden's tweet to be addressed to a black person.
(2) On 12 September 2018, Ms Hayden issued a Part 8 claim in the County Court at Leeds under claim no E73LS068, alleging harassment by four defendants, of whom Ms Scottow was one. Ms Hayden made a witness statement, but did not formally serve the claim form or the witness statement on Ms Scottow.
(3) On 24 September 2018, Ms Hayden and Ms Scottow entered into a written settlement agreement by which Ms Hayden agreed not to pursue any legal remedy against Ms Scottow in the Leeds proceedings, or to bring any further legal proceedings against her, provided that she complied with certain undertakings, recorded in paragraph 3 of the document. These were to:
“(a) Delete any tweet on the Twitter account known as “@BustedWench” referring to “@flyinglawyer73”, or “Stephanie Hayden” by 4pm on Tuesday 2 October 2018. A notice of discontinuance was filed with the County Court and served on 28 September 2018.
(b) Not tweet, retweet, or quote tweet on the Twitter account known as “@BustedWench” any reference to “@flyinglawyer73”, or “Stephanie Hayden”.
(c) Not make any publication on any form of social media stating that the Claimant is a racist or has published anything racist on any form of social media.”
(4) A notice of discontinuance was filed with the County Court and served on 28 September 2018. Ms Hayden posted the settlement agreement online in some form.
(5) On 1 or 2 October 2018, Ms Scottow tweeted a copy of the notice of discontinuance, tagging in Ms Hayden (“ Tweet 2”). To do this, Ms Scottow used a newly created Twitter account with the handle @AliceHampton. By this time, Ms Scottow had blocked Ms Hayden from her @bustedwench account.
(6) On 2 November 2018, Ms Scottow tweeted on the @bustedwench account as follows (“ Tweet 3”), by way of a reply to tweets by others:
“'Sadly, I'm not allowed to discuss as per his bullying contract, good will out though, and he will be fucked in a few year's time”
(7) On 6 November 2018, Ms Scottow took, and posted on her @bustedwench account, a screenshot of a post by Ms Hayden, with the message (“ Tweet 4”):-
“This person is not a racist, xenophobic larping lawyer/transwoman. This person is a crook using the trans façade to ensure they aren't caught. A pig in a wig”
(8) On 9 November 2018, Ms Scottow used her @bustedwench account to tweet a post by Ms Hayden critical of Mumsnet with the statement (“ Tweet 5”):-
“he is a very sick individual I've evidence of that”
(9) On 9 November 2018, Ms Scottow posted a further tweet on her @HampsonAlice account, in which she tagged Ms Hayden. Ms Hayden had tweeted about an intersex advocate, critical of “anonymous freak trolls obsessing and speculating over” her “every move” and suggesting that “Something must have upset them”. Ms Scottow's tweet (“ Tweet 6”) said
“Christ, surprised your memory has held up given you're claiming PiP for it”.
(10) On a date unknown on or before 11 November 2018, a message was left on Mumsnet from an account named BurntMarshmallow as follows (“ Message 7”):
“‘I have many leads on the claimant they're on pip for memory loss’
(11) On 11 November 2018, Ms Hayden made a report to West Yorkshire Police, alleging harassment and malicious communication by Ms Scottow. She made a statement.
(12) On 1 December 2018, at the instigation of the West Yorkshire Police, PC Kitchen of the Hertfordshire Police arrested Ms Scottow on suspicion of harassment and malicious communication. Ms Scottow was interviewed. She admitted the two Twitter accounts were hers, and that she had posted the 6 tweets. She did not accept posting Message 7. She denied committing any offence. At the time of arrest, the officer seized Ms Scottow's Samsung mobile phone and her ASUS laptop. The police, apparently expecting a guilty plea, decided, later on, that downloading data from the phone or computer would be disproportionate and unnecessary.
(13) On 1 December 2018, Ms Hayden posted 5 tweets highlighting the fact of the arrest (though not Ms Scottow's name) describing this as “positive news regarding the #harassment I have received in recent weeks”, and as “sending a clear signal that #transphobia and #harassment will not be tolerated”.
(14) In early December 2018, Ms Hayden issued proceedings against Ms Scottow in the High Court under action number QB-2018-000294. On 18 December 2018, Ms Hayden appeared before Jason Coppel QC, sitting as a Deputy Judge of the Queen's...
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