Rhodri Colwyn Philips, whose hereditary title is Viscount St Davids, recently abandoned his appeal against his sentence under section 127 of the Malicious Communications Act 2003. He withdrew his appeal after being informed by Judge Deborah Taylor, the Recorder of Westminster sitting at Southwark Crown Court, that the appeal could result in his sentence being increased.
Viscount St Davids was convicted at Westminster Magistrates Court on the 11th July 2017 by District Judge & Chief Magistrate Emma Arbuthnot. On the 13th July 2017 he was sentenced to 12 weeks imprisonment. More can be read about the facts of this case from the judgment and the sentencing-remarks; suffice to say the case concerned derogatory facebook comments made about Gina Miller and an immigrant called Arnold Sube, see here, where Viscount St Davids was ostensibly offering to pay for Miller & Sube to be killed.
There was however no suggestion that in making the comments Viscount St Davids was attempting to incite murder or to engage in a conspiracy to murder. He has never been investigated for these more serious offences.
Section 127 above makes it an offence to send any electronic communication that is “grossly offensive”, or “of an indecent, obscene1 or menacing character”. Guidance for interpreting the statutory language is provided via DPP v Collins, see here, although Collins did not concern the term “menacing”. According to Collins communications must be judged in the context of a “just, open and multi-racial society”. Indeed in sentencing Viscount St Davids, Mrs Arbuthnot displaying what appeared to be unequivocal political bias, stated that ‘we’ are lucky to live in a multi-racial society.
I would opine that this is another example of an offence that is too vague and consequently an unjustified restriction on freedom of speech. I accept however that prohibiting menacing communications is a justified restriction on free speech if one applies the dictionary definition of menacing, i.e. threatening or suggesting the presence of danger. Such a prohibition though, would be covered by other laws.
In this case St Davids’ was charged with making menacing comments and convicted of the same. Thus the Collins guidance would seemingly not apply. The Court should have applied the dictionary definition of ‘menacing’ as stated above. This being the case, the conviction is illogical because it is accepted that St Davids was not actually attempting to cause Miller or Subre to be murdered; the statements were in effect an expression of extreme contempt and/or hatred for Miller and Subre, which does not fit the dictionary definition of ‘menacing’, especially when the comments were not communicated to Miller or Subre by St Davids. Miller read the comments but only because they were drawn to her attention by third parties. Miller was apparently distressed by the comments but it is not suggested that she thought her life was in danger because of St Davids’ comments or feared any specific action because of them. The third parties included a Mr Matthew Steeples who, judging by this-post appears to have considerable animosity towards St Davids and may have befriended him on facebook only to cause him reputational damage (see paragraph 20 of the judgment).
St Davids’ comments were foolish and intemperate2. However, foolish and intemperate comments, even where they are expressing hatred and/or contempt, should not lead to a criminal conviction much less a prison sentence, as I have argued before. Unfortunately for St Davids he makes for the paradigm villain for the politically correct establishment, being a white male aristocrat with the temerity to expect others to use his correct title, see here.
1The original common law definition of obscene is that which is liable to “deprave and corrupt those whose minds are open to immoral influences” (R v Hicklin (1868). It is interesting to observe the following:
(1) the ideological forebear of the current political class, Roy Jenkins, sought to weaken obscenity laws by providing a wide ranging defence based on artistic licence
(2)Jenkins is credited with being the first major political figure to champion multiculturalism in a speech he gave as Home Secretary in 1966
(3) A new offence has been created based on obscenity, obscenity being defined with reference to multiculturalism (the term multi-racial is used but there is an overlap and ‘just’ and ‘open’ is probably a partial reference to multiculturalism)
2; It is irrational to blame that likes of Arnold Sube for emigrating to the UK and consuming resources that are offered to them as opposed to the politicians who allow for them to enter and be provided with the resources (in a further example of possible bias, EA at paragraph 22 of the judgment wrongly claims that the Defendant was only angry because Subre was an immigrant with a large family – nothing to do with the state benefits he was claiming). Furthermore in my view, Miller used the ill-thought out vitriol directed against her to generate sympathy for herself and to appear as a philanthropic martyr concerned only with adherence to the UK Constitution. More intelligent and informed commentary could have been used to show that she was in fact misanthropic and when voicing concern over adherence to the Constitution, disingenuous. It would also have been more useful to examine the individuals backing the challenge behind the scenes.