The recent experience of Paris Brown, the 17-year-old who resigned before taking up her role as Kent’s Youth Police and Crime Commissioner following a furore surrounding comments she made on Twitter, demonstrates exactly the type of police activity that the Director of Public Prosecutions, Keir Starmer, was seeking to prevent when he issued prosecution guidelines (the “Guidelines“) in December of last year.
The Guidelines, which were widely reported at the time (including on this blog), related to the use of social media and the internet and sought to clarify when a prosecution should and should not be brought for posting ‘offensive’ content online. The Guidelines were the product of a rigorous process of consultation with Twitter, Facebook, Liberty, the police, regulators, lawyers, academics, journalists and bloggers, following which a wider public consultation was also carried out.
They aim to strike a fair balance between freedom of expression on the one hand and the need to protect individuals from abuse and harassment on the other. The DPP also rightly pointed out that we must adopt a pragmatic approach towards the use of public resources when considering prosecutions within the nascent and evolving world of social media. The criminal courts would quickly be swamped if no limits were placed on the types of case taken forward by the CPS.
The brief facts of the Paris Brown case are as follows. Ms Brown was appointed to the new role in early April by Kent’s Police and Crime Commissioner, Ann Barnes. Following her appointment she received a great deal of publicity and aspects of the role, particularly Ms Brown’s age, proved to be highly controversial in the national media. This led to the publication by The Daily Mail of various comments which Ms Brown had made on Twitter which were considered to be offensive by many people. Certain members of the media then undertook a campaign to undermine her credibility which ultimately led to her resignation. Following complaints from various members of the public, Kent police then launched an investigation and took the decision to question Ms Brown under section 1 of the Malicious Communications Act 1988; the charges were subsequently dropped, but there is no doubt that the experience will have been very distressing for her.
In certain circumstances, criminal investigations and prosecutions for statements made on social media websites are extremely important. For instance, in the Ched Evans case, ten defendants were charged with publishing material likely to lead to the identification of a rape victim, contrary to the Sexual Offences (Amendment) Act 1992. The law grants victims and alleged victims of rape lifelong anonymity and the police rightly charged those who flouted this principle online; a clear example of the important role the police can play in protecting the rights of individuals in the internet sphere.
However, there needs to be a balance, and the police got it totally wrong in the Paris Brown case. The Guidelines indicate that a criminal prosecution must be both necessary and proportionate and there must be a strong public interest in pursuing the case. To bring a prosecution, the post would have to exceed what could “conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression”; this is a high threshold.
Examining some of the DPP’s examples of when this test would probably not be met reveals that Ms Brown’s case is exactly the type of scenario which the Guidelines sought to preclude from prosecution.
- ‘The suspect or a service provider has taken action to remove the content promptly or issued an apology.’ Ms Brown removed her Twitter account and issued several public apologies.
- ‘The communication was not intended for a wide audience or the intended audience did not include the victim or target.’ Ms Brown made the comments to a small group of Twitter followers, years prior to her appointment as Kent’s Youth Police and Crime Commissioner.
- ‘The content of the message did not exceed what could conceivably be tolerable or acceptable in an open and diverse society which upholds and respects freedom of expression…[and] must be more than offensive, shocking or the expression of unpopular or unfashionable opinion – even if distasteful to some or painful to those subjected to it.‘ Ms Brown’s comments, whilst apparently offensive to the 50 people who complained to Kent Police, clearly did not exceed this threshold.
Importantly, the guidance also made provision for the age and maturity of the suspect, something which is highly relevant to Ms Brown’s case, given that she posted the tweets in question between the ages of 14 and 16. The DPP said that “prosecutions of children will very rarely be in the public interest”, a sensible proposition and a matter of public policy that most would agree with.
With this in mind it is unsurprising that Kent Police concluded that the case did not pass the evidential threshold for a prosecution and the comments were “in context, not grossly offensive on an objective assessment”. The correct conclusion was reached, but not before 17-year-old Ms Brown was subjected to a visit from Special Branch officers at her home, seizure of her mobile phone and a police station interview under caution, a response that most people would conclude was extremely distressing, overzealous and wholly disproportionate to the circumstances of the case.
It is hoped that this high profile decision will provide police forces across the country with an appropriate yardstick going forward and bring an end to expensive and time consuming investigations of cases with no merit. Perhaps even more importantly, it may prompt the police to heed more closely the DPP’s advice so as to minimise any chilling effect examples like Ms Brown’s case may have on freedom of expression.
Ashley Hurst is a Partner and Ryan Dolby-Stevens is a Trainee in the Commercial Litigation team at Olswang LLP. Olswang acted pro bono for Paris Brown in relation to the police investigation.