Former Met Police Detective Chief Inspector David McKelvey has called for the prosecution of Andrew Gwynne, the Labour MP forced to resign as a health minister last weekend for posting racist and sexist comments in a private WhatsApp group. “One rule for MPs, another for police officers?”, McKelvey asked on LinkedIn, pointing out that officers have been prosecuted for sending less offensive messages. “The law must be applied fairly to all – no exceptions.”
Gwynne was sacked after the publication of his private messages, in which he said he hoped an elderly constituent would die. He was also accused of racism, sexism and anti-Semitism, for messages that included personal remarks about Angela Rayner and Diane Abbott.
The police have now logged this as a ‘non-crime hate incident’ (NCHI) – perhaps to avoid accusations of bias – but as McKelvey suggests, a better alternative would be to stop penalising private messages altogether. That would mean repealing Section 127(1) of the Communications Act 2003.
However, as FSU General Secretary Toby Young writes in The Spectator this week, he played a small but significant role in preventing that from happening. Was he right? “You be the judge,” he says.
Here’s an extract:
In 2021, the Law Commission of England and Wales recommended the introduction of a new speech crime – the Harmful Communications Offence – whereby if you sent a message that was ‘likely to cause serious distress’ to a ‘likely audience’ you could be jailed for up to two years. As a sop to free speech campaigners, the commission proposed that section 127(1) should be repealed at the same time (along with section 1 of the Malicious Communications Act 1988), and argued that the net effect would be a reduction in the number of speech crimes being prosecuted.
Boris Johnson’s government took up this proposal and included it in the first draft of the Online Safety Bill. But the Free Speech Union wrote to the then secretary of state at DCMS, who was in charge of the bill, and argued against it. Part of the problem was that the old offences would stay on the statute books in Scotland, as speech crime is a devolved area of legislation, and due to a wrinkle in the Online Safety Bill that would mean any content that fell foul of them would still have to be removed in every part of the UK. The quid pro quo offered by the Law Commission was largely an illusion. The new offence, along with the others which would only have been repealed in one part of the UK, would mean free speech online was more restricted.
The secretary of state was persuaded and the relevant clause in the Online Safety Bill was deleted. We congratulated ourselves on a great victory. But was it? Today, people are still being routinely prosecuted for sending grossly offensive messages on a public electronic communications network. That is an offence under the relevant clause of the Communications Act and, had it been repealed, it is doubtful people could be prosecuted for saying something racist or sexist on WhatsApp (unless they live in Scotland). The ‘likely audience’ caveat in the new Harmful Communications Offence would have put paid to that since the ‘likely audience’ in a private WhatsApp chat is the other members of the group, and presumably they would not suffer ‘serious distress’ as a result of reading the messages – or jokes, to give them their proper name.
I still think the Harmful Communications Offence would have been worse since it shifted the definition of the crime from the content of the message to the psychological effect on the recipients. That would have meant woke activists browbeating the police to investigate social media posts by their political opponents on the grounds that they caused them ‘serious distress’. WhatsApp jokes would have been safe from the offenditrons; unfashionable opinions on X and Facebook would not.
But here’s the rub: one of the recommendations of the Home Office report on tackling extremism leaked to the Policy Exchange thinktank a few weeks ago was that the Harmful Communications Offence should be revived, along with the same quid pro quo suggested by the Law Commission. My worry is that Yvette Cooper will bring in the new offence without repealing the old ones. If so, then lobbying against the original proposal will have been a mistake, since at least we would have been tossed a bone in return for the creation of yet another speech crime.
Ironically, prosecuting Gwynne for making stupid jokes to his mates on WhatsApp might have been free speech campaigners’ best hope. Most Labour ministers are probably making even more politically incorrect jokes in private chats, and if it’s brought home that they can be prosecuted under a law brought in by Tony Blair, they might see the wisdom in repealing it. We can but hope.
Worth reading in full.
