Scope Creep

Michael Grayshott

The Post Office rolled out the K6 telephone kiosk in 1935, to celebrate George V’s silver jubilee. One unintended consequence, as the postmaster general, Kingsley Wood, explained to Parliament, was ‘an increasing number of cases where miserable people have indulged in the use of improper or obscene language to our female telephonists’. A switchboard operator might valiantly try to ensure the caller ‘held the line’ long enough for an engineer to trace his location, but the heavy-breathers had unwittingly found a loophole in the law. The GPO tried to bodge a solution from some statutory off-cuts, either arguing that this behaviour constituted ‘fraudulent use of electricity’ or invoking the even more obscure common law offence of ‘obstruction’, but these were cumbersome and ineffective remedies.

In March 1935, Wood introduced his solution to the House of Commons. Clause 10 of the Post Office (Amendment) Bill 1935 – ‘molestation of officers’ – would criminalise sending switchboard operators ‘telephone messages’ that were ‘grossly offensive or of an indecent, obscene or menacing character’. Red box abusers were now subject to a fine of up to £10 or one month’s imprisonment. Clement Attlee, Wood’s shadow at the time, suggested that the protection of clause 10 should be extended to the Post Office’s customers, too: ‘There are certain moral perverts who take a delight in ringing up and using indecent language... and if people do these things they should pay for it.’ The postmaster general agreed.

Time and technology marched on, while the 1935 act gathered dust. Over the coming decades, section 10 was occasionally brought off the shelf by a precedent-stickling Parliamentary Counsel, and applied crudely to the latest developments in communication. Grossly offensive messages sent by fax machines, mobile phones (s.43 of the Telecommunications Act 1984) and email (s.43, Criminal Justice and Police Act 2001) were in this way all brought within the ambit of the criminal law.

In legislative jargon, this is known as ‘scope creep’. A provision designed to deal with a relatively narrow problem is stretched out of context and recognition – usually in the name of ‘completeness’ – and very often with unintended consequences. Section 127 of the Communications Act 2003 offers a particularly crude example. Through rather cavalier drafting, it criminalised any grossly offensive, indecent, obscene or menacing message sent over anything that could be described as a ‘public electronic communications network’. For sure, this would encompass poison-pixel messages sent to or directed at an individual, but it would also apply to blogposts, Facebook updates and tweets sent to the world at large. Or to nobody in particular.

The Communications Act 2003 is a dense regulatory statute that in 410 sections and 19 Schedules details every intricacy of the UK’s media framework. Unsurprisingly, the provision did not receive much in the way of legislative scrutiny. In fact, Hansard shows that it was voted through on the nod in both the Commons and the Lords, without any debate whatsoever. A potentially enormous field of behaviour was therefore criminalised without the slightest attention to the section’s drafting or likely effect. (Although when, in the wake of the recent McAlpine affair, a legislator such as Lord David Steel can opine that ‘the people who run the internet have a lot to answer for,’ we should perhaps be thankful that such dim-bulb sentiments were not allowed to intrude at all.)

So it shouldn’t come as a shock that the prosecuting authorities have taken a similarly casual approach to the invocation of these offences. It took two years, two Court of Appeal judges and the Lord Chief Justice to establish, in the ‘Twitter joke trial’, that a tweet by accountant, Paul Chambers, ‘threatening’ to blow up Robin Hood airport as revenge for the interruption of his holiday plans, was not menacing. On Remembrance Sunday this year, a 19-year-old man was arrested by Kent Police for posting a picture of a burning poppy on his Facebook wall, accompanied by ‘an offensive comment’: ‘How about that, you squadey [sic.] cunts?’

The Director of Public Prosecution will soon publish guidelines as to the circumstances in which such prosecutions are likely to be in the public interest. But the ultimate power will still remain on the statute book. Unless Parliament takes a closer look at the provisions that give this discretion, it will be possible to talk without hyperbole of the criminalisation of bad taste. And what could be more offensive than that?