Key Facts
- •Thomas Casserly was convicted of sending a grossly offensive electronic communication under s 1(1)(b) of the Malicious Communications Act 1988.
- •The communication was an email to a town councillor criticizing her ability to perform her duties due to her disabilities.
- •Casserly argued his email was a legitimate expression of opinion protected by Article 10 of the European Convention on Human Rights.
- •The trial judge did not give the jury directions on the interaction between the 1988 Act and Article 10.
- •Casserly represented himself at trial.
Legal Principles
Article 10 ECHR guarantees freedom of expression, including the right to impart information and ideas, even if offensive or shocking.
European Convention on Human Rights, Article 10
Section 1(1)(b) of the Malicious Communications Act 1988 criminalizes sending grossly offensive electronic communications with intent to cause distress or anxiety.
Malicious Communications Act 1988, s 1(1)(b)
The meaning of 'grossly offensive' in s 1 of the 1988 Act must be interpreted in a way that is compatible with Article 10 ECHR, considering the context of the speech and the importance of free speech, particularly in a political context.
Connolly v Director of Public Prosecutions [2007] EWHC 237 (Admin)
For an offence under s 1(1)(b) to be proportionate to the interference with freedom of expression, the prosecution must prove that causing distress or anxiety was one of the defendant's purposes (as a motivating objective), not just an intention or foreseen consequence.
Various case law, including Law Commission Report No 147
Outcomes
Appeal allowed; conviction quashed.
The trial judge's directions to the jury were inadequate because they failed to properly address the interaction between the right to freedom of expression and the offence under s 1(1)(b) of the 1988 Act. The jury was not adequately directed on the meaning of 'grossly offensive' in the context of political speech and the need to prove that causing distress or anxiety was a motivating purpose of the appellant.
No retrial ordered (provisional view).
Considering the appellant had served his sentence, and other factors, a retrial did not appear to be in the interests of justice.