Factual and Procedural Background
Following a trial in the Crown Court, the Defendant was convicted of an offence and sentenced to imprisonment. After release, multiple posts appeared on five websites containing critical and abusive statements targeting the recorder who presided over the trial and the advocates for both prosecution and defence. Some posts were sent via emails in the Defendant's name, while others were sent under various aliases, but the prosecution alleged all originated from the Defendant.
The Defendant was charged on indictment with multiple offences under section 1 of the Malicious Communications Act 1988, each count alleging the sending of electronic communications to the recorder or prosecution or defence counsel. The Defendant pleaded not guilty, and the case proceeded to trial after delays.
The trial judge raised concerns about the indictment's wording, noting discrepancies between the indictment's allegations and the evidence regarding the recipients and nature of the messages (some appeared to be opinions rather than information). The judge directed the prosecution to provide a detailed schedule clarifying the postings' content, timing, recipients, and any false information alleged.
The prosecution complied with the schedule and submitted written arguments. However, the judge remained concerned and did not direct amendments nor did the prosecution apply for leave to amend. Before trial commencement and jury swearing, the judge made a pre-trial ruling under section 40(1) of the Criminal Procedure and Investigations Act 1996.
The judge ruled that for the offence under section 1 to be made out, the message must have been sent directly to a person. He found that the postings, being online posts not sent to individuals, did not satisfy this element. Consequently, the prosecution faced the choice of accepting no evidence or appealing under section 58 of the Criminal Justice Act 2003.
The prosecution did not immediately appeal, apparently misunderstanding the appeal procedure due to the misapplication of the term "terminatory ruling." The judge granted adjournments to allow the prosecution to consider its position. Eventually, the prosecution neither offered no evidence nor initiated an appeal promptly.
The judge stayed the proceedings as an abuse of process but later lifted the stay when the prosecution agreed to appeal and accepted the acquittal undertaking required by section 58(9) of the 2003 Act. The appeal was then heard by this court.
Legal Issues Presented
- Whether the trial judge erred in law by ruling that online postings could not constitute an offence under section 1 of the Malicious Communications Act 1988 because they were not sent directly to an individual;
- Whether the judge's ruling on abuse of process was appropriate in light of the prosecution's conduct;
- Whether the judge correctly applied the appeal procedure under section 58 of the Criminal Justice Act 2003.
Arguments of the Parties
Appellant's Arguments
- The prosecution challenged the judge's narrow interpretation of section 1 of the Malicious Communications Act 1988, arguing that the offence extends to electronic communications posted online intended to cause distress or anxiety to the subject.
- The prosecution contended that the judge's ruling on abuse of process should be overturned and that the appeal procedure under section 58 was correctly engaged.
Respondent's Arguments
- The Defendant, representing himself, responded to the prosecution's submissions. Specific arguments were not detailed in the opinion.
Table of Precedents Cited
| Precedent |
Rule or Principle Cited For |
Application by the Court |
| R v Y [2008] EWCA Crim 10 |
Clarification on the use and interpretation of "terminating" or "terminatory ruling" in prosecution appeals under section 58 of the Criminal Justice Act 2003. |
The court emphasized that the phrase is not in the statute and its use can cause confusion. The case was cited to reinforce correct interpretation of the appeal provisions and the acquittal undertaking. |
Court's Reasoning and Analysis
The court began by clarifying that the phrase "terminating ruling" is not found in the Criminal Justice Act 2003 and should be avoided to prevent confusion. Any ruling made by a judge relating to a trial on indictment can be appealed by the prosecution under section 58, provided statutory conditions, including the acquittal undertaking, are met.
The judge's ruling that online postings could not constitute an offence under section 1 was held to be erroneous. The court reasoned that the offence is expressed in deliberately broad terms, encompassing any letter, electronic communication, or article sent with intent to cause distress or anxiety. The definition of "electronic communication" includes any communication by electronic means, and sending includes causing to be sent or transmitted.
The court rejected the judge's narrow interpretation that the message must be sent directly to an individual, noting that "person" includes both individuals and corporations. A message posted on a website can amount to an offence if it is intended that its contents be communicated to the subject and cause distress or anxiety. Whether this occurs is generally a question for the jury.
Further, the court held that the contents of the communication need not be statements of fact; expressions of opinion can also be indecent or grossly offensive and capable of causing distress or anxiety.
The court found that the prosecution came close to failing the statutory requirements for appeal but ultimately met them through the judge's granted adjournments and the acquittal undertaking. The judge's abuse of process ruling was deemed unnecessary and did not impede the prosecution's appeal rights.
Accordingly, the court concluded it had jurisdiction to hear the appeal and that the trial judge’s ruling on the legal ambit of section 1 was wrong in law and must be reversed.
Holding and Implications
The court granted leave to appeal, allowed the prosecution's appeal, and reversed the trial judge's ruling.
The direct effect of this decision is that the trial may proceed. The prosecution remains free to apply for amendments to the indictment or schedule as appropriate, and the trial judge retains the power to direct such amendments. The court recommended that the continuing proceedings be heard before a different judge and at a different Crown Court centre to avoid any potential prejudice.
No new legal precedent was established beyond clarifying the correct interpretation of section 1 of the Malicious Communications Act 1988 and the proper application of appeal procedures under section 58 of the Criminal Justice Act 2003.
Reporting restrictions were imposed to anonymise the Defendant, who must be referred to only by the letters "BLC" until the conclusion of the Crown Court proceedings or further order, to prevent identification and protect the fairness of the trial.