Sergeant 5033 Power has confirmed that it is NOT a crime to post malicious, grossly offensive comments about anyone on Facebook, so long as you only post it on your Facebook page, even if it is public. You can say anything you want about any person (including Sgt Power), as he says (with authority) that for it to be Malicious Communications, it MUST be sent to a person or the victim. How wrong he is!
Sgt Power goes on to say Facebook is Freedom of Speech, and by signing up to Facebook, you are agreeing to this. He also said that it was an offence of Slander in Civil Law. Again, Sgt Power is wrong. Written defamatory comments are libel, not slander.
Sgt 5033 Power is called out as being clueless in such areas of law and failing victims of crime.
The call recording is available, and Sergeant 5033 Power has given permission for it to be published, which is being considered.
Sergeant 5033 Power clearly does not understand this area of the law, and this is of great concern, as what he has said is completely wrong, and many victims may have been deprived of justice by incompetent policing.
PC Smith claimed that he had all the legislation and CPS guidance in front of him and that he and his Sergeant (Sgt Power) do not need it to be sent to them.
Legal Framework
Section 127 of the Communications Act 2003 (‘CA 2003‘) says
It is not necessary to show the message was addressed to, or received by, another person. The actus reus of the offence is complete when the message is sent – see DPP v Collins [2006] UKHL 40, and DPP v Kingsley Smith [2017] EWHC 359 (Admin). This will cover the posting of a message, and indeed re-posting or other sharing of a communication.
EMM Legal on the subject of ‘sending’ in relation to the Malicious Communications Act 1988
Sent to another person: ‘Sending’ is ordinarily understood but is put beyond doubt by section 1(3) MCA which states “(3) In this section references to sending include references to delivering or transmitting and to causing to be sent, delivered or transmitted and “sender” shall be construed accordingly.” Accordingly, any transmission or delivery of a communication, be it to a website, social media platform, or directly to an individual, will constitute the act of ‘sending’.
CPS guidance on social media and other electronic communications
(b) Who a communication is sent to
The prosecution must establish that the message was sent to another person. Depending on the facts of the case, a social media communication which is merely a blog or a comment posted on a website may not suffice as sending to another. Prosecutors should consider the evidence that the communication was addressed (either by name or in terms) to a specific recipient, and how likely the specific recipient was to receive it (did they also have a Twitter or Facebook account?).
Summary
Anyone with an understanding of the law can see that Sgt 5033 Power is lacking in his knowledge but using his power to make incorrect (and therefore illegal for the purpose of Judicial Review) decisions. The offence reported is very fact-specific, facts which Sgt Power ignored before making his illegal decision.
A complaint has been submitted, and an application for a Judicial Review of the decision will be made should the decision not be changed.
This will be the 2nd Judicial Review against Bedfordshire Police related to offences committed by the same offender. The first was conceded by the former Chief Constable, Gary Forsyth, costing the taxpayer over £20,000.
Sgt Power has been asked for his comments.
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