“Freedom only to speak inoffensively is not worth having”
In a complex legal appeal it can be hard to ‘see the wood for the trees’. Yet it is important to understand where and how a judge went wrong. To clarify Kate Scottow’s successful appeal case of December 2020, here are some highlights from the Appeal Judgment by the Hon Mr Justice Warby. The original judge was District Judge Margaret Dodd (appointed 2018). A link to the full text of the judgment is at the end.
Quotations from the actual appeal judgment are in italics. Other texts represent the account, views or conclusions of OBJECT and Kate Scottow.
Article 10 Rights refer to Article 10 of the Human Rights Act:
The right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers.’
- The law was wrongly applied, the prosecution inadequate and the judge did not find the full facts
The conviction was vitiated by errors of law and for that reason cannot stand.
The facts of the matter have not been as easy to identify as they should have been: the prosecution did not obtain all the contextual material for the offending messages; the prosecution presented its case in a somewhat disorderly way; the District Judge’s fact-finding was limited.
- The 2018 injunction which silenced Ms Scottow was wrong
In December 2018, Ms Hayden ….. obtained an injunction, prohibiting Ms Scottow …. from publishing “any personal information relating to” Ms Hayden “ on any social media platform” as well as “mis-gendering” her on any social media platform, publishing anything linking her current female identity to her former male identity, and anything stating or implying that she “is a racist or has published anything racist on any form of social media”. Ms Scottow was neither present nor represented at the hearing when this order was made.
The… injunction is…. unprecedented in its breadth and content. An application on similar lines was refused by (judge) Nicklin in Hayden v Dickenson (another case brought by Ms Hayden), observing “I can scarcely conceive of circumstances in which the Court would grant an injunction in these terms”.
In short, I do not consider that… there is an offence of posting annoying tweets.
I was surprised to read … that the defendant, who like Ms Scottow had been arrested following a complaint made by Ms Hayden, was released on pre-charge bail, one condition of which was that she was “not to post on social media anything relating to the Claimant.”
Ms Hayden had made ‘a fair few’ such claims against individuals and organizations. It is not known how much money Ms Hayden has obtained by such claims and settlements.
- Police, don’t second-guess the outcome. If you seize data, at least look at it
At the time of arrest, the officer seized Ms Scottow’s mobile phone and laptop. The police, apparently expecting a guilty plea, decided that downloading data from the phone or computer would be unnecessary.
- Kate Scottow called it right at the start
(Presciently) Ms Scottow tweeted in “Tweet 9”, “Hopefully the CPS (Crown Prosecution Service) will view these complaints in future as harassment and vicious. A complete waste of the public’s resources. Surely better to focus on more pressing issues.”
- A key issue
The issues were whether the messages represented the “persistent” use of a public network by Ms Scottow “for the purpose of causing annoyance, inconvenience or needless anxiety” to Ms Hayden.
This provision was originally designed to deal with silent, anonymous or heavy-breathing phone calls or hate mail via the Post Office. To apply it to internet social media is not appropriate.
- Judges should take proper notes
Ms Scottow gave evidence, and according to the case stated “she denied being persistent or ‘out to annoy’”. The Judge made no other note of her evidence.
- Importance of the legal context
The prosecution and the Judge had insufficient regard to the legal context, which is all-important.
- Harassment is serious behaviour beyond everyday annoyance
The behaviour said to amount to harassment must reach a level of seriousness beyond irritations, annoyances, even upset, that arise occasionally in everybody’s day-to-day dealings with others.
- The alleged victim’s subjective feelings must not sway the court’s objectivity
The Court’s assessment of the harmful tendency of the statements complained of must always be objective, and not swayed by the subjective feelings of the claimant. It would be a serious interference with Article 10 rights if those wishing to express their views could be silenced by, or threatened with, proceedings for harassment based on subjective claims by individuals that they felt offended or insulted. Article 10 expressly protects speech that offends, shocks and disturbs. “Freedom only to speak inoffensively is not worth having”.
- Being (like Ms Hayden) by choice a public figure raises the bar:
Where the claimant is, by choice, a public figure, that should influence any assessment of whether particular conduct amounts to harassment of that individual; such a person has “inevitably and knowingly laid themselves open to close scrutiny of their every word and deed”, and others can expect them to be more robust and tolerant accordingly.
- The prosecution kept changing the charge such that the intention of the law was lost
The prosecution did not charge Ms Scottow with malicious communication or harassment, but with an offence contrary to s 127(2) of the 2003 Act, which charge they then amended. They presented that charge to the Judge as if it were a lesser version of harassment, with a less demanding threshold – a kind of “harassment-lite” – in which it was enough to prove an intent to cause offence of at least one the kinds referred to in s 127(2)(c). That, in my judgment, is also how the Judge treated the matter. I am satisfied that this was wrong in law. In addition, although the Convention (European Convention of Human Rights) was mentioned by the prosecution and the Judge, the approach of both, and the Judge’s analysis, were legally flawed and inadequate…… It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient.
- Judges should give reasons for their opinions
The District Judge found that “The behaviour of Ms Scottow, in sending messages was a single, continuing course of action spanning several months from September 2018 until May 2019”, and therefore properly charged in a single count. She gave no reasons for this conclusion.
- For communications to count as persistent, they must be frequent & connected in theme
This was not a single “course of action”……. a series of communications must have an element of frequency; but there was one tweet in September, then four or five two months later, in the course of a week in early November, than a gap of over three months, then 10 messages on the same day. The communications must…… also have some connecting theme or other factor, if they are to count as persistent.
The District Judge was wrong in law to hold that the 2018 and 2019 Messages were, or could all be considered to be, part of a single course of “persistent” conduct.
- The purpose to cause annoyance must be proven, not just alleged by the prosecution
She (Ms Scottow) was not doggedly pressing away at the same point, in the face of opposition. This was a conversation, of a moderately challenging kind, but nothing more and nothing worse.
In my view (the Judge’s) approach to that issue was flawed in several respects and her reasoning is deficient. She did not address her mind to the question of whether the messages were “for the purpose” of causing annoyance…… She misdirected herself on the issue of tagging and blocking (which indicated that Ms Scottow did not intend Ms Hayden to see the Tweets)
The Judge seemingly regarded the evidence of Ms Hayden as to the actual effect on her as in some way relevant to the question of purpose. It was not.
- The time limit is 6 months after the alleged offence
It was not lawful to prosecute Ms Scottow in August 2019 for her conduct over 9 months earlier.
- Don’t lump together things that don’t belong together
She (the judge) dealt with the messages collectively, rather that considering the purpose or purposes of each one.
- Free speech is a legal right to offend. Unkindness is not a crime. Don’t take an alleged victim at face value.
This is an unstructured approach that lacks the appropriate rigour. The Crown evidently did not appreciate the need to justify the prosecution, but saw it as the defendant’s task to press the free speech argument. The prosecution argument failed entirely to acknowledge the well-established proposition that free speech encompasses the right to offend, and indeed to abuse another. The Judge appears to have considered that a criminal conviction was merited for acts of unkindness.
I do not consider… that a prosecution in respect of the 2019 Messages could be justified as necessary in a democratic society
The 2019 Messages did not do any of the things she identified in her evidence as “unacceptable”…. (Ms Hayden) did not regard what was said as in any way offensive or objectionable, until she discovered that Ms Scottow was the pseudonymous author. At that point Ms Hayden was angered, to the point of contacting the police again.
No convincing, relevant or sufficient reasons have been given for the decision to prosecute Ms Scottow …. for those messages, and there was and is in my judgment no pressing social need to do so. A prosecution and conviction on these facts would represent a grossly disproportionate and entirely unjustified state interference with free speech.
No one involved in the case against Kate Scottow did their job properly. There were multiple failings by the police, prosecution and the District Judge. OBJECT has put in a Freedom of Information Request to find out what (if any) training, policies and procedures the police have on the subject of how to treat breast-feeding mothers in custody. We are being sent from pillar to post.
Kate Scottow, although now vindicated on appeal, still has Post-traumatic Stress Disorder and has lost that all-important first job after getting a degree because of the criminal conviction she wrongly and temporarily had, for a case which should never have been brought in the first place.
Had Kate Scottow, despite being traumatised, depressed and having care of two young children, not found the courage to appeal against this heavily flawed judgment, the freedom of speech of thousands of rational, law-abiding gender-critical feminists would have been lost. We thank Kate for her brave stance. There are no words to thank her enough.
Here is the link to the full appeal judgment
Watch Our Inteview with Kate on the 31st January 2021