A man prosecuted for a tasteless Halloween joke about the Manchester Arena bombing has just had his conviction overturned, in a case that raises serious questions about the state’s growing role as arbiter of acceptable humour.
David, 40, pleaded guilty last year to sending a grossly offensive message after posting images online of himself dressed as Salman Abedi – the terrorist who murdered 22 people, including children, at an Ariana Grande concert in 2017.
His costume included an Arabic-style headdress, a T-shirt reading “I love Ariana Grande” and a rucksack marked with the words “Boom” and “TNT”. One photo was captioned, “bet I get kicked out of the party”, while a later post read: “Only went and won the best costume.”
He was arrested by North Yorkshire Police on 1 November 2023, after the authorities received a complaint about the images on social media. At the time, the force stated: “North Yorkshire Police can confirm that a man has been arrested after the force received complaints about a man wearing an offensive costume on social media, depicting murderer, Salman Abedi.”
David was charged under Section 127 of the Communications Act 2003, which makes it a crime to send, 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”.
This provision is troubling because it criminalises speech based on subjective standards: what counts as “grossly offensive” is left almost entirely to judicial opinion. Unsurprisingly, it has become a favourite tool of police and prosecutors responding to complaints from individuals who feel distressed by material posted online.
David pleaded not guilty at Harrogate Magistrates’ Court and was convicted. We funded his legal representation for the appeal and instructed barrister Adam King, who successfully persuaded the Crown Court to quash the conviction.
In his ruling on Friday, the judge concluded that the legal threshold for a conviction had not been met. “We are not sure it’s grossly offensive,” he said. “Stupid, rude, generally troublesome – it might be described as. But we do not find this proved.”
David’s case comes amid growing concern about the expanding use of criminal legislation to target controversial but lawful speech online.
A recent investigation by the Times found that police in the UK are now making an average of 33 arrests a day under Section 127 of the Communications Act 2003 and Section 1 of the Malicious Communications Act 1988 for allegedly “grossly offensive” messages. Several police forces did not respond to data requests, meaning the true figure is likely to be higher. This quiet criminalisation of everyday expression is rarely discussed in Parliament or mainstream media, but it is becoming one of the defining free speech issues of our time.
In recent years, these laws have been used to prosecute individuals for a wide range of contentious online speech. Those convicted include Scottish comedian Mark Meechan (a.k.a. ‘Count Dankula’), found guilty of a hate crime for training his dog to perform Nazi salutes; Kate Scottow, fined for sending tweets that called a trans woman a “pig in a wig”, as well as “he” or “him”; and Paul Bussetti, who received a 10-week suspended jail sentence for filming a cardboard model of Grenfell Tower being burnt at a Bonfire Night party and sharing the video in two WhatsApp groups.
The FSU supported David’s case on the grounds that, while the costume was undeniably offensive, it was nonetheless a joke. And however dark a joke may be, the simple fact is that in any liberal democracy worthy of the name, the state has no business prosecuting people for humour, particularly in the absence of any threat, incitement, or targeted abuse. If we care about free speech, we must be willing to accept that tastelessness is not a crime.
