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Is it illegal to insult Captain Tom? Being offensive should not be a crime

He doesn't need Twitter to protect him (Christopher Furlong/Getty Images)

He doesn't need Twitter to protect him (Christopher Furlong/Getty Images)


February 9, 2022   5 mins

When the Comanche chief Tosahwi surrendered to Philip Sheridan in 1869, he described himself as “a good Indian”. “The only good Indian,” the General is said to have replied, “is a dead Indian”. This genocidal epigram has been adapted for use as a provocative assertion of unbending tribal enmity ever since.

The day after Captain Tom died last February, 36-year-old Glaswegian Celtic fan Joseph Kelly substituted “Brit soldier” for “Indian”, in the manner of the IRA, in a tweet. He then clarified his position by adding: “burn auld fella, buuuuurn.” Last week, almost a year on, he was convicted by Sheriff Adrian Cottam of sending a “grossly offensive” message contrary to section 127(1)(a) of the Communications Act 2003. He awaits sentence, and perhaps an appeal.

On the rare occasions when discussion of free speech trials avoids the buffers of perceived partisanship — “You were a Thursday night pot-banger so of course you want to throw the book at him” —  it is usually derailed by flitting between two separate questions: “Was the law correctly applied by the court?” and “Should the law be different?” Such flitting can of course be deliberate as well as careless.

Our answer to the first question almost always depends on the meaning of “grossly offensive”. In 2006 the Judicial Committee of the House of Lords held:

“There can be no yardstick of gross offensiveness otherwise than by the application of reasonably enlightened, but not perfectionist, contemporary standards to the particular message sent in its particular context. The test is whether a message is couched in terms liable to cause gross offence to those to whom it relates.”

As to the mental element of the offence: “the defendant must intend his words to be grossly offensive to those to whom they relate, or be aware that they may be taken to be so”. And in 2017 the High Court seems to have clarified that to mean: “taken to be so by a reasonable member of the public.”

So, if a message is liable to cause gross offence to a person to whom it relates, and the defendant is aware that a reasonable member of the public might take it to be liable to do so, that is enough for a guilty verdict.

Now, one could argue that there is no prospect of someone taking offence at a tweet posted after they’ve died — the charge, after all, specified “offensive remarks about Captain Sir Tom”, rather than about British soldiers in general. But the appeal courts would likely find a way to close that apparent loophole — perhaps by establishing a very broad interpretation of “to whom it relates”.

Was Section 127 applied correctly then? Probably, yes. My own reaction to the tweet was, I confess, low-key: somewhere between a frown and an eye roll. But it was clearly liable to cause gross offence to Captain Tom’s family, and the defendant would surely have been aware that a reasonable member of the public might see it that way.

But that doesn’t mean this law is any good. And that’s because it does not rest upon a shared cultural respect for a set of extreme taboos. All manner of commonplace statements are now liable to cause gross offence to those to whom they relate — yet be completely unobjectionable to almost everybody else. Yes, there are interpretative protections about the importance of context and so on, but Section 127 criminalises too much, and too vaguely.

The Indian Supreme Court came to this conclusion several years ago. The relevant parts of Section 66A of their Information Technology Act 2001 were written in near-identical terms to Section 127 of our Communications Act 2003. In striking down the legislation in 2015, the Justices held that “expressions such as ‘grossly offensive’ […] are so vague that there is no manageable standard by which a person can be said to have committed an offence or not”.

Fortunately, we might be about to catch up with the Developing World. In July last year the Law Commission recommended we get rid of Section 127. Its report noted that we lack universally accepted definitions of concepts such as “grossly offensive”; the “spectre of universal standards” should be “rejected”. Arguably, a lack of universal standards does not augur well for society — but we mustn’t deny that this is the state we find ourselves in.

In place of Section 127, the report recommended a new offence: posting, without reasonable excuse, a communication “likely to cause harm to a likely audience”, and the Crown must prove that the defendant intended harm. Harm is defined as, at a minimum, serious psychological distress. This is, on the face of it, a great improvement. And last Friday, the Government published an interim response expressing their intention to add this offence to the Online Safety Bill.

So unlike Section 127, the new offence would require proof of an intention to cause serious psychological distress. And even when a defendant did hold that intention, he or she could argue that the message wasn’t actually likely to be seen by anyone likely to be seriously distressed by it. This could place heavier responsibility on the bigger Twitter accounts, which is as it should be. And “It was supposed to be a joke”, “I didn’t mean any harm by it”, “I didn’t expect it to be retweeted so much”, and even “in the circumstances it was fair enough” (reasonable excuse) could all, if this law is enacted, become relevant parts of a defence.

But there is a twist. The Law Commission’s original plan, in the consultation paper, was that the Crown need only prove that the defendant was aware of the risk that harm might be caused. This is a much lower threshold than intention. The reason for their change of heart, they repeatedly emphasised, is that the Online Safety Bill imposes a legal duty on social media companies to remove harmful content — including content that is not illegal.

So a complaint to Twitter about the removal of a perfectly lawful tweet could be met with the response, “Yes, but the only reason tweets like this are not illegal is because we have to delete them”. Of course, the State delegating its natural responsibilities to private companies is nothing new. But to do so to this extent — narrowing the ambit of an important piece of criminal legislation at the heart of our right to Free Speech — is a worrying development, and does not sit well with the Law Commission’s stated aim of “technological neutrality”, or their intention that new offences be “future-proofed”.

If a behaviour is so wrong that it should be criminal, it ought not to slip through the net simply because global tech companies will be told to prevent it. The Law Commission rightly expressed concern about the “inconsistent application” of the Section 127 offence. But if there is one thing all sides can agree on it is that Twitter’s moderation policies are known for little else.

The high bar of intention to cause harm is a welcome development, and a measure of offensive dross in the digital public square is a price worth paying: for freedom, yes, but also for the sense of freedom, particularly among people at the less free end of the socio-economic spectrum. But instead of requiring social media companies to remove non-criminal material, it might be better — safer, even, in the long-run — if they were prevented from doing so. After all, responsibility for deciding what can and cannot be said should rest, perhaps, with any reasonable member of the public. And most of them are not on Twitter.


Adam King is a criminal barrister at QEB Hollis Whiteman.

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James Joyce
James Joyce
2 years ago

“Last week, almost a year on, he was convicted by Sheriff Adrian Cottam of sending a “grossly offensive” message contrary to section 127(1)(a) of the Communications Act 2003. He awaits sentence, and perhaps an appeal.”
I’m an attorney. Can someone please explain this to me? How can a criminal defendant be convicted by a sheriff? What is going on?
This discussion is far too long–being “offensive” would eliminate much or all of stand up comedy, as Jimmy Carr is finding out. Jimmy Carr used to be funny. He made great rape jokes, just as Ricky Gervais made amazing jokes about being molested. Hard to do but both pulled it off. So did Jim Jeffries, back when he used to be funny. Anthony Jeselnik. If people are offended, don’t listen. Don’t go to the show. Free choice. Stand up comedians seem to be at the forefront of defending free speech, no topic off limits. Bravo to them!
Why do people even consider criminalising something so subjective? It’s totalitarian. If Captain Tom’s family is offended, they’ll just have to live with it. So what?

Rasmus Fogh
Rasmus Fogh
2 years ago
Reply to  James Joyce

Did you know that in Scotland a ‘Sheriff’ is a judge? He presides over a Sheriffs court, which is a criminal court that “can deal with any crimes except murder, rape and treason“. Those are reserved for the High Court of Justiciary.

SULPICIA LEPIDINA
SULPICIA LEPIDINA
2 years ago
Reply to  Rasmus Fogh

You could have mentioned that absolute zenith of Scotch Judicial procedure, the conviction one one :
Abdelbaset al-Megrahi for the Lockerbie bombing.*

(*How Dr Johnson would have laughed.)

James Joyce
James Joyce
2 years ago
Reply to  Rasmus Fogh

Nope. Thanks!

Stuart Noel
Stuart Noel
2 years ago
Reply to  James Joyce

The trial took place in Scotland, judges are called sheriffs here. Scotland has some unique aspects of its legal system which differ from the rest of the UK.

Sorry Rasmus, your reply wasn’t showing when I posted mine.

Last edited 2 years ago by Stuart Noel
Rasmus Fogh
Rasmus Fogh
2 years ago
Reply to  Stuart Noel

The more the merrier. You actually live in Scotland too.

JR Stoker
JR Stoker
2 years ago
Reply to  James Joyce

With some reluctance I have to partially agree with you. (Not the Sheriff point, explained by Rasmus.) But I do prefer comedians who tell jokes. By all means defend free speech, thank you, stand-up comics, it’s appreciated, but by being “offensive” you are to some people strengthening the case for curtailing free speech. It needs a bit of thought as to what you are going to say.

James Joyce
James Joyce
2 years ago
Reply to  JR Stoker

With respect, I disagree. Actually, Jimmy Carr analyses jokes and why jokes are offensive or not offensive–short answer: the audience decides. I can’t find it on YouTube right now, maybe someone else can, but he talks about the function of humour in society, what’s acceptable, what’s not. The most offensive joke in his view, measured by impact, was the Danish cartoonist who drew Mohammed with a bomb in his turban. This led to death and destruction against Denmark. I’ll keep looking, but maybe someone else can find this clip.
When a comedian deconstructs a joke it’s a big risk–most can’t pull it off, and most shouldn’t try–do we really want magicians showing how their acts work? But Jimmy does, back when he was funny, and it’s an amazing journey, informative, new material, and well worth your time.

Rasmus Fogh
Rasmus Fogh
2 years ago
Reply to  James Joyce

Could you expand on that? The (in)famous Mohammed cartoons were fairly mild political satire, perfectly acceptable, with no intent to offend anyone – to a Danish audience. They only ‘became’ offensive when they were transported to Pakistan, where no one reads Danish newspapers, but where a large group of people were hell-bent on being violently offended anyway. Are you really saying that what makes a comment offensive, and therefore unacceptable, is the existence of a group that is determined to get offended? If so it would follow that any reference to the independence of Tibet is very offensive indeed (just ask Xi).

James Joyce
James Joyce
2 years ago
Reply to  Rasmus Fogh

This is just wildly wrong, from a Muslim point of view. In their faith, it is haram to depict the prophet Mohammed. The Danish artist surely knew this, so he was attempting to offend, provoke, poke (insert your preferred word here), which is his right and fair play.
To address your later point, I’m not saying anything like that–no topic off limits in my view. The only flaw in comedy is not being funny. I once thought there was nothing funny about child abuse or rape, but I have been proven wildly wrong. Fair play. Ricky Gervais made me laugh (about being molested) despite myself–and the audience loved it too. It’s a form of steam release for a society to mock horrible things. I don’t think Jimmy Carr’s joke about the positives of the Holocaust is particularly funny, but hey, not all jokes work all the time.
And by the way, he very carefully dissects the lowest form of audience, writ large, who claim to take offense on behalf of some other group. Stated another way, the Roma might have some cause to be offended (but so what?), but other groups pretending to take offense on their behalf are truly Churlish Unhinged Negative Twins.

Michael Askew
Michael Askew
2 years ago
Reply to  James Joyce

A mild variation on your point about the Danish cartoon. The artist was making a point about Islamic terrorism, in the full knowledge no doubt that it would cause a violent reaction. I suspect his primary aim was to point at the horrors of the bombings, not annoying Muslims.

Rasmus Fogh
Rasmus Fogh
2 years ago
Reply to  Michael Askew

Actually I do not think so. The newspaper had noticed that people were shying away from any depictions of the Islamic prophet, and wanted to 1) start a discussion, 2) make the point that this was not necessary, and you could do it without the sky falling down. You could say that they succeded on 1) and failed spectacularly on 2) , but without benefit of hindsight no one could have predicted that you would get 25 people killed over what was by local standards not only obvious but mild. And, anyway, why would anybody in the Muslim world *care* what drawings they made in a tiny provincial place like Denmark?

Rasmus Fogh
Rasmus Fogh
2 years ago
Reply to  James Joyce

I still cannot figure out what you are saying. Is that cartoon wrong or acceptable – never mind the various points of view? If you are saying that Muslims and Danes have different opinions on that cartoon, and that this was probably the cartoon that offended the largest number of people the most, I can only agree. Those are neutral statements of fact. But the whole discussion here is normative. How much *should* one consider the point of view of people who are not part of your society and who are not part ot the intended audience?

James Joyce
James Joyce
2 years ago
Reply to  Rasmus Fogh

Wow, I always try to be clear, really clear, so here goes: I like the cartoon. A cartoon, even one that offends, can (almost?) never be “wrong.” I don’t care if it offends–sometimes that’s the point. Remember “Piss Jesus,” a work of art that put a cross in urine. Not my thing, I don’t quite get it, but the “artist” was trying to make a point. Good for him, sort of.
With the Mohammed cartoon, it was a bit less subtle, but I get it, I like it, and I simply don’t care who it offends and how many. Bravo to DK for taking the hit, sort of.

JR Stoker
JR Stoker
2 years ago
Reply to  James Joyce

Thank you, I’ll try to find it.
But surely, the audience is finding whether it is offensive to them, not to the target of the joke? How many audiences would find it funny if they were, for example, told by the comedian that they were thick, smelly, should not be allowed out without brain surgery, and too stupid to comprehend his humour? I might find that funny sitting watching it on TV, but the audience might well react badly.
I still think though that speech should be free, no matter how offensive, unless it is really likely to cause destruction of life or property. Then it is not the humour or the speech that should be tested in the courts, but whether there was incitement.

James Joyce
James Joyce
2 years ago
Reply to  JR Stoker

Kindly see my last ¶ above. I hope you can find it, as it is worth your time.

Charles Hedges
Charles Hedges
2 years ago

Captain Sir Tom fought for, as did millions of others. freedom. Joseph Kelly is offensive but he has done us a favour by reminding people of the spite of some Glasgow Celtic fans. Lawyers and The Law do not protect freedom. German laws were passed by the Nazis to remove the freedom of Jewish people. Professor S Hicks has videos on You Tube showing how the Nazis were supported by intellectuals. It was this spite which Hitler used to control the German people.
Freedom will have a greater chance of being kept if we ridicule the spiteful, chip on the shoulder, types.

michael stanwick
michael stanwick
2 years ago

After all, responsibility for deciding what can and cannot be said should rest, perhaps, with any reasonable member of the public.
Perhaps the a priori addendum of this is that any reasonable member of the public should, paraphrasing Emma Webb of The Free Speech Union, be able to be trusted to hear and then interpret that speech themselves, and not told how they should be editing the public space in line with current ideologies.

Last edited 2 years ago by michael stanwick
Richard Parker
Richard Parker
2 years ago

Naturally, I don’t support Kelly’s conviction for his actions. It flies in the face of too much that I hold to be important. The fact that he’s a crass tw*t is to me indisputable, but it’s not a legal matter and it shouldn’t be. (Funny that I have to censor a well deserved insult, though, isn’t it?)
As a further consideration, Kelly wishes Captain Tom to be in hell. Now, if he actually believed in eternal damnation, he’d also know that assuming the role of judge in that matter would be to supplant God and would therefore be blasphemous. Unless, of course, his religion is a front for interests more secular in nature. Not that I give a tinker’s for his opinions on that or anything else.

Last edited 2 years ago by Richard Parker
Dominic A
Dominic A
2 years ago

Two highly significant things that are often overlooked in contemporary speech ‘outrages’-
Intentionality – did the speaker intend to be offensive, or was ignorant, or making a joke, good or bad?
Instant Karma – people, society is often self-correcting, self-punishing, self-rewarding; there is usually no need for the law, government to step in. It seems this applies to vaccine mandates (people may be more likely to get the vaccine if not mandated by a political team they don’t like), and I suspect to the Sheridan, and Kelly, who will forever more be know as morons.

Vince B
Vince B
2 years ago

There has been a terrifying mash-up on the Left recently of the notions “offensive,” “harm,” and “safety,” as in “Ruth’s feelings were harmed by Reggie’s offensive comments, so she complained to her boss that her workplace had become unsafe.”
And so, in the our endless quest to remain “safe” and free from “harm” we can stifle anything deemed “offensive.” Of course, only those who have the cultural winds at their back are so willing to clamp down on speech. We see this in the broadest sense now, when any off-script comment about Covid is “misinformation,” “anti-science propaganda” that “is literally getting people killed.”
Lady Liberty is being slowly poisoned to death by the left, while the right holds a knife to her throat (the latter at least here in the US). Scary times.

Nicky Samengo-Turner
Nicky Samengo-Turner
2 years ago

Welcome to the new britn DDR

Tom Watson
Tom Watson
2 years ago

“In place of Section 127, the report recommended a new offence…the Crown must prove that the defendant intended harm. Harm is defined as, at a minimum, serious psychological distress. This is, on the face of it, a great improvement.” – Yes.
“But there is a twist. The Law Commission’s original plan…was that the Crown need only prove that the defendant was aware of the risk that harm might be caused. This is a much lower threshold than intention. The reason for their change of heart…is that the Online Safety Bill imposes a legal duty on social media companies to remove harmful content — including content that is not illegal…Narrowing the ambit of an important piece of criminal legislation at the heart of our right to Free Speech — is a worrying development,” – Couldn’t disagree more. Had to reread this several times to make sure I’m not misunderstanding. Surely the last thing we want is for the definition of criminal speech online to match up with ‘anything a social media moderator considers to be in some way harmful’? It would be *widening* the ambit of criminal legislation at the heart of our right to free speech that would be worrying. What am I missing here?

Erik Hildinger
Erik Hildinger
2 years ago

In the States, at least, there is a legal doctrine that a statute may be “void for vagueness.” In other words, it is wrong to enforce such a statute on the ground that it cannot reasonably be understood.  I have no idea whether this doctrine applies in British law in either the observance or the breach, but this report suggests not, at least in this circumstance.  A question that might be asked is this:  in the situation discussed above, is it not in fact useful to the government to have vague laws on the books in order to threaten or punish those with whom it broadly disagrees?  Complaints that the law is too broad to follow could be met by using media companies as enforcers, so that blame for the immediate application of the law can be shifted to non-government entities, putting the issue at one remove from its real source. 

Daniel Lee
Daniel Lee
1 year ago

Just a cloaked example of the Left’s ongoing attack on free speech (because too darn many people they disagree with are using it). If “grossly offensive” is too vague to be enforced, who will define and enforce the vastly more meaningless “harm”? We know who; it will be the usual Woke warriors who find any opposition to their agenda “harmful” and subject to suppression by whatever means come to hand.

SULPICIA LEPIDINA
SULPICIA LEPIDINA
2 years ago

What’s new here?
We hanged Julius Streicher in 1946 for making similar offensives remarks. Mr Kelly should be more careful.