Malicious Communications: Freedom of Email? Elected Officials, Disability and Expression
| Published date | 01 February 2024 |
| DOI | http://doi.org/10.1177/00220183241233200 |
| Author | Alex Benn |
| Date | 01 February 2024 |
Malicious Communications:
Freedom of Email? Elected Officials,
Disability and Expression
R v Casserly[2024] EWCA Crim25
Keywords
Malicious communications, free speech, freedom of expression
Facts
The case centred on an email. In June 2020, the appellant had sent an email to a town councillor, raising
concerns about the Middlewich Cemetery Board. The complainant, another elected councillor copied into
the email, had replied that she would like to see the evidence supporting the appellant’s allegations. In
response, the appellant had sent an email to the complainant, copying in others. The email had commen-
ted on the complainant’s disabilities and questioned her ability to carry out her role. The complainant
reported the email to the police.
In the Crown Court at Chester, the appellant was tried for sending an indecent or grossly offensive
electronic communication with intent to cause distress or anxiety, contrary to section 1(1)(b) of the
Malicious Communications Act 1988. He represented himself during the proceedings. In evidence, the
appellant considered that the complainant’s disabilities affected her ability to perform her role and that
he was entitled to express his view. The appellant submitted that the jury should be directed to take
due account of the complainant’s public role and the appellant’s free speech rights. Instead, the trial
judge directed the jury that the real question was simple, namely whether the appellant’s view (as
expressed in the email) fell foul of the law by reference to normal everyday language and the standards
of ordinary decent people. The trial judge also summarised the parties’respective arguments, including
the appellant’s right to express an opinion to his councillor. The jury convicted him. When sentencing
him on 20 June 2022, the judge remarked that, though the appellant had the right to challenge councillors
robustly, he had to do so properly and courteously.
Having been granted leave by the full court as to one of his four grounds (and refused leave on the
remaining three), the appellant sought to appeal against his conviction.
Held, allowing the appeal, article 10 of the European Convention on Human Rights guaranteed a fun-
damental right not limited to information or ideas on political issues or serious criticism. The common
law right of free speech was co-extensive (at [35]). Although some forms of expression fell beyond
the scope of the right (such as solely vulgar abuse or, under article 17 of the ECHR, ideas aimed at
destroying democracy), the law did not require courtesy. The right to free speech covered speech convey-
ing offensive, disturbing or even shocking information or ideas (at [37]). The email in question may have
comprised passages that were insulting, upsetting or offensive, but it clearly did not fall under article 17 of
the ECHR (at [39]). Nor was it a communication containing nothing but abuse (at [40]).
The appellant had been prosecuted for exercise of his right to free speech and expression of opinion (at
[41]). The prosecution was incompatible with that fundamental right (at [42]). While the right was
Case Note
The Journal of Criminal Law
2024, Vol. 88(1) 74–77
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183241233200
journals.sagepub.com/home/clj
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