A man has been jailed for six weeks for posting messages on Facebook about the Leeds teacher Ann Maguire, tragically murdered by a pupil.
The man, one Jake Newsome, wrote that he was "glad" Ms Maguire had been stabbed and "felt sorry" for the perpetrator, who should have "p****d on her too".
In my view people like Newsome are loathsome creeps. But should being a loathsome creep be a crime? If Newsome had made his unpleasant remarks to a friend in private, would this have been an offence? No. Neither would it have been if he had made them at, say, a debate about educational reform. If it isn't a crime to say these things, however unpleasant, why should it be a crime to write them on Facebook (or anywhere else)? Facebook is just a public conversation writ large. If Newsome had written them to a newspaper and the newspaper had been daft enough to publish them, would that have been a crime? No. Should it have been? I don't think so.
It's not clear from the news reports under which legislation Newsome was charged. An interesting criminal law blog suggests (here) that it could have been either the Malicious Communications Act 1988 or the Communications Act 2003, but that in both cases the outcome would have been the same (it's worth reading the analysis and critique of the law on this site, which is one of the only places I've been able to find where the writers seem at all bothered about the way the CPS is applying these laws).
But the relevant provisions of both these Acts were set up essentially to make life difficult for stalkers and emissaries of abusive letters. The 2003 Act was legislated (and the 1988 Act amended in 2001) by the last Labour government to recognise that the advent of the internet required that the wording of the existing hate mail legislation be reworded. Did Labour intend that people like Mr Newsome should clog up the courts and be criminalised for saying things that lots of us find offensive? Probably not, but in a way it doesn't matter because that's what's actually happening. And I find it very disquieting, because what's offensive is a matter of opinion. Who is to say that my opinion matters more than yours, or the other way round?
These laws fail one of the most basic tests of legislation, which is that we know what it means. I have no idea what sort of conduct will and won't attract the attention of the CPS, and I don't think anyone else does either. I don't think anyone knows what is the definition of offensive. Being prosecuted (or not being prosecuted) depends essentially on the CPS's whim. If you read the blog on the link above you'll see that there's some discussion about whether the CPS obeyed its own guidelines on whether to prosecute. The writers conclude that it probably didn't, but in a way that's not the most important thing. Of much more significance is the idea that the CPS can prosecute you, if it feels like it, for a crime no-one can properly define. What would Orwell have thought of this? Not much, one feels.
What Newsome wrote was horrible. But not as horrible as prosecuting him for it. One is a transgression of manners and taste. The other is a transgression of freedom of speech.
