This article is about how PC 9898 Jason Durnall of West Midlands police refused to investigate a crime because he tried to interpret case law which, after reading it (or after someone reading it to him at bedtime with a cookie), he decided that a crime had not been committed when it had.
A summary of the offence is that a man (‘the sender’) sent a message in an email to another man (‘the victim’).
The message sent was “YOU FUCKING PEDO CUNT”
Several other insulting and derogatory comments were also sent by the sender, but for the purpose of this article, we will reference only the one above.
The facts are;
- The sender knew that the victim is not a pedo and had no reasonable belief that he was.
- The sender knew that the phrase he used was grossly offensive and insulting to the victim; as
- The sender had been previously charged under the Malicious Communications Act for 12 months prior, for using the exact words against the same victim. (The case was dropped after the sender claimed he thought ‘pedo’ meant ‘child’)
By virtue of point 3 above, point 2 is a reliable fact.
On reporting the (repeat) offence, it was reviewed by PC 9898 Jason Durnall, who said the following;
‘I have reviewed this report and applied the CPS Guide on prosecuting communications based offences. To satisfy the CPS threshold cases need to satisfy both the evidential and public interest stage. There needs to be sufficient objective evidence that both criteria are met. A case that does not pass the evidential stage must not proceed regardless of how serious or sensitive the case may be.
This case does not meet the CPS Code of Practice for prosecuting this offence.
The content does not:
1. consist of serious threats of violence or contain a credible threat towards person or property. It has to be more than offensive, shocking, disturbing, satirical, iconoclastic or rude comments. It has to be more than an expression of unpopular or unfashionable opinion about serious or trivial matters, banter or humour, even distasteful or painful to some of those subjected to it.
2. is not a case of serious stalking or serious harassment
3. is not a breach of any court order
4. the content is not grossly offensive, indecent, obscene – this is set at a high threshold and in many cases a prosecution is unlikely to be in the public interest to pursue.
I am mindful of Redmond-Bate v DPP (Div Court 23 July 1999), Sedley LJ emphasised that under the Public Order Act 1986, mere fact that words were irritating, contentious, eccentric, heretical, unwelcome and provocative was not enough to justify the invocation of Criminal Law unless they tended to provoke violence.
I am also mindful of the more recent Scottow -v- CPS before the Rt. Hon. Lord Justice Bean and the Hon. Mr Justice Warby. Where in summing up it was stated:
“It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature, or such as to cause anxiety for which there is no need. First, the crime is only committed by conduct that is “for the purpose” of causing annoyance, inconvenience or anxiety….but I do not consider that the mischief aimed at by Parliament when it passed s 127 of the 2003 Act was as broad as causing offence online.”
To the layperson, the above may convince them that PC Jason Durnall, (being a police constable), should understand the law, but in fact, this highlights the dangers of police believing they can or should act as a lawyer by attempting to interpret case law.
Firstly, calling a person a fucking pedo cunt is, without question, grossly offensive and in relation to the victim is. untrue. A paedophile is a person who has sexual interests in children and often pursues this to extremes. It is, without any doubt in a reasonable person’s mind that this is a grossly offensive human trait that some individuals have.
It follows that calling an innocent man a paedophile is grossly offensive as it suggests that he pursues and maybe enacts sexual interests in children.
An interesting fact, in this case, is that the sender of the Malicious Communication has been accused, (and this is confirmed by his own wife), to have gotten a ‘minor pregnant‘… ‘he in glass houses…‘
It is curious why PC Jason Durnall suggests being called a paedophile to be grossly offensive? I would be a significant sum of money that any innocent man would say being called a paedophile is possibly the most grossly offensive thing to be called?
It could be suggested that only a paedophile would think it is not grossly offensive to be called a paedophile.
PC Durnall then quotes case law
“Redmond-Bate v DPP (Div Court 23 July 1999), Sedley LJ emphasised that under the Public Order Act 1986, mere fact that words were irritating, contentious, eccentric, heretical, unwelcome and provocative was not enough to justify the invocation of Criminal Law unless they tended to provoke violence.“
Firstly, Lord Justice Sedley was referencing words in relation to the Public Order Act 1986 (not words relating to the Malicious Communication Act).
The case law relates to 3 preachers, who preached religion and publicly expressed their religious views. The preachers’ views gave rise to people becoming verbally hostile, and a disturbance occurred.
At no time did any person call another a fucking pedo cunt. PC Jason Durnall has either intentionally (or incompetently) misinterpreted the comments of Lord Justice Sedley, whose comments related directly to the case before him where Sedley LJ commented: “words were irritating, contentious, eccentric, heretical, unwelcome and provocative was not enough to justify the invocation of Criminal Law unless they tended to provoke violence.”
PC Durnall then quotes more case law (Scottow -v- CPS before the Rt. Hon. Lord Justice Bean and the Hon. Mr Justice Warby)
“It is clear, in my judgment, that these provisions were not intended by Parliament to criminalise forms of expression, the content of which is no worse than annoying or inconvenient in nature, or such as to cause anxiety for which there is no need. First, the crime is only committed by conduct that is “for the purpose” of causing annoyance, inconvenience or anxiety….but I do not consider that the mischief aimed at by Parliament when it passed s 127 of the 2003 Act was as broad as causing offence online.”
In the above case, the two senior judges have ruled that “free speech encompasses the right to offend and indeed abuse another”, while clearing a mother-of-two who repeatedly misgendered a trans woman and called her a “pig in a wig” online which is clearly a distasteful opinion but is a far cry from calling someone a fucking pedo cunt.
So without any consideration for the case referenced, PC Jason Durnall infers that calling an innocent man a ‘fucking pedo cunt‘ is no worse than ‘annoying or inconvenient in nature‘. PC Durall completely missed the crux of the paragraph he quoted which goes on to say “…the crime is only committed by conduct that is “for the purpose” of causing annoyance, inconvenience or anxiety”
By this assertion, PC Jason Durnall is of the opinion that the sender did not intend to cause annoyance, inconvenience or anxiety. The question is, what does PC Jason Durnall think the purpose was for calling the innocent man a fucking pedo cunt? I think it is evident in the tone of the comment that it was to cause, at the very least, annoyance and anxiety and therefore PC Jason Durnall has proven his inability to interpret case law and should leave ‘law’ to those who are qualified.
The victim, in this case, brought the evidence before a District Judge who issued a summons for the sender to face charges of Malicious Communications and the case awaits trial.
There are difficulties these days they are all corrupt the lot of them, the point is the law is complex because they want it to be, ask the poor victims who were wrongly executed due to some class prejudice big-got residing as a judge where’s the justice for them their lives snuffed out like a candle.
Working as a barrister, I have witnessed MANY (successful) prosecutions under the 2003 Act for almost IDENTICAL messages. Although I hesitate to recommend the criminal justice system for such minor incidents, if you had sent such an email to a police officer, I GUARANTEE that charges would be filed against you.
This PC is fundamentally wrong in his application of the Full Code Test because he attempts to answer questions intended for a jury/magistrate.
Personally I don’t believe police should have any charging powers whatsoever, but that is a whole other issue.
I think that the problem nowadays is the law is so ambiguous. Often it is what a “victim” claims to be thinking or feeling (say are their feelings allegedly hurt).
Then there are even “hate incidents” where although there is no allegation of criminality an incident is recorded officially based simply upon a favored minority or a woman claiming they’ve been subject to hostility etc. Forinstance a hate incident could be if a white man rises from a train seat as a negro passenger is sitting down next him. If the negro thinks the other passenger moved because of hostility towards him he can report it as a “hate incident”.
All this is in real contrast to the concrete way the law was traditionally.
So I guess all this complexity may be behind the cop needing a lawyer.
Law has always been complex, and that is why there are lawyers who have studied for years and specialise in the subject. Police constables are not lawyers, their role is not to interpret the law, it is to collect evidence, compile it a let those who specialise in law make the decisions.
Surely when you stated ‘white’, you meant ‘caucasian’?
The law must also be applied consistently.