APPENDICES
public order.523 It is a defence pursuant to s5(3)(c) for the defendant to prove that his conduct was reasonable.
¶5.127 Section 18 creates an offence of using words or behaviour or displaying written material
intending to stir up racial hatred. It provides that a person who uses threatening, abusive or insulting words or behaviour or displays any written material which is threatening, abusive or insulting is guilty of an offence if he intends thereby to stir up racial hatred or having regard to all the circumstances racial hatred is likely to be stirred up.524
¶5.128 Section 19 creates an offence of publishing or distributing written material stirring up racial
hatred. This section provides that a person who publishes or distributes written material which is threatening, abusive or insulting is guilty of an offence if, (a) they intend thereby to stir up racial hatred, or (b) having regard to all the circumstances racial hatred is likely to be stirred up. References to publication or distribution of written material are to its publication or distribution to the public or a section of the public. It must be shown that the material was generally accessible to all or available to all, or placed before or offered to the public.
¶5.129 Part 3A of the Act contains provisions about offences involving the stirring up of hatred
against persons on racial grounds, or hatred on grounds of sexual orientation. The thrust of the offence contained in s29B is to criminalise the use of threatening words or behaviour or display of written material where the defendant intended thereby to stir up religious hatred or hatred on the grounds of sexual orientation. Section 29C provides that a person who publishes or distributes written material which is threatening is guilty of an offence is they intend thereby to stir up religious hatred or hatred on the grounds of sexual orientation.
¶5.130 There are provisions for the protection of freedom of expression (as required by the Strasbourg
cases cited below), including s29JA. This provides that: "… the discussion or criticism of sexual conduct or practices or the urging of persons to refrain from or modify such conduct or practices shall not be taken of itself to be threatening or intended to stir up hatred".
¶Communications Act 2003 5.131 Section 127(1) of the Act creates an offence when a person sends by means of a public
electronic communications network a message or other matter that is grossly offensive or of an indecent, obscene or menacing character, or causes any such message or matter to be so sent. Section 127(2) creates an offence if, for the purpose of causing annoyance, inconvenience or needless anxiety to another, a person sends by means of a public electronic communications network, a message that they know to be false, causes such a message to be sent, or persistently makes use of a public electronic communications network.
¶5.132 This section has been recently considered by the Divisional Court in hearing an appeal against
1949the conviction of Mr Paul Chambers for sending a public electronic message that was grossly offensive or of an indecent, obscene or menacing character contrary to s127(1)(a) and (3) of the Communications Act 2003. Mr Chambers, upon hearing that an airport he was due to travel from was closed due to adverse weather conditions, posted a message on twitter to the effect that the airport had a week to resolve the issue or he would be "blowing the airport sky high!!" Mr Chambers was convicted on the basis that the content of the message was of a menacing character. The Divisional Court concluded that a tweet was a message sent
¶Appendix 4 | Legal Materials
by an electronic communications service and thus falls within s127(1) of the Act, however, on an objective assessment, the decision of the Crown Court that the tweet constituted or include a message of a menacing character was not open to it. The Court held that a message which does not create fear or apprehension in those to whom it is communicated, or who may reasonably be expected to see it, falls outside the Act for the simple reasons that the message lacks menace. The Court considered, obiter, the mental element of the offence and held that the offender must have intended the message to be of a menacing character or be aware of, or recognise the risk, at the time of sending the message that it may create fear or apprehension in any reasonable member of the public who reads or sees it. If the sender intended the message as a joke, it is unlikely that mental element of the offence would be established.
¶Conspiracy and secondary liability 5.133 In relation to each of the offences identified above there is also potential conspiracy liability
contrary to s1 of the Criminal Law Act 1977 and potential secondary liability (see s8 of the Accessories and Abettors Act 1861) or encouraging or assisting an offence (ss44-46 of the Serious Crime Act 2007).
- Criminal procedure
¶Police powers of investigation in relation to journalists 6.1 As a general rule, in the event that the police seek to make inquiries as part of a police
investigation a journalist is in the same position as any other member of the public in that they are under no general duty to provide assistance. In exceptional circumstances, the police have the power to insist on answers being provided to questions in the context of suspected breaches of s1 of the Official Secrets Act 1911.525 Further, investigators and inspectors appointed under the Financial Services and Markets Act 2000 to investigate specific allegations in relation to a range of regulatory offences have powers to compel answers from interviewees the production of information and documents.526
¶6.2 Police powers of investigation, including powers of entry and search of premises, are
contained primarily in the Police and Criminal Evidence Act 1984 (PACE). A general power to search any premises occupied or controlled by a person who is under arrest for an indictable offence can be exercised if a police officer has reasonable grounds for suspecting that the premises contain relevant evidence.527 Once at the premises, a police officer has the power to seize anything which they have reasonable grounds for believing they would be authorised to search and seize, where it is not reasonably practicable to determine at the time whether they do have such authorisation.528 However, these powers are only available once a person is under arrest and are not available at a preliminary stage of an investigation. Further, if a police officer seizes anything which appears to be excluded material or special procedure material (as defined below), this must be returned as soon as reasonably practicable unless it cannot be separated from other property it is lawful to retain.529
¶6.3 By statute, journalists occupy a privileged position in relation to material in their possession;
¶it is more difficult for the police to obtain this material which is hedged with greater legal
1950