Over the past months, much publicity has been given to the case of PF Airdrie v Mark Meechan, which relates to the consequences of Mr Meechan posting on YouTube a short video entitled “M8 Yer Dugs [sic] a Nazi”. As everyone now knows, in the course of this short clip, Mr Meechan’s dog lifted its fore paw in response to Mr Meechan using the words “Sieg Heil” and (apparently on 23 separate occasions) “Gas the Jews”. The existence of the video on a public forum came to the attention of persons who found its content grossly offensive, the matter was reported to COPFS, a summary prosecution was commenced under Section 127 of the Communications Act 2003 and after a trial lasting around four days, spread as is normal in present-day summary procedure over several months, he was found guilty and ultimately fined. Leave to appeal both conviction and sentence has now been refused at the sifting stage, and this has resulted in a great deal of criticism of the Scottish legal system, much of it ill-informed.
The applicable law
Mr Meechan was charged under Section 127 (1) of the Communications Act 2003, which states that a person is guilty of an offence if he –
“(a) sends 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; or (b) causes any such message or matter to be so sent.”
The charge can only be prosecuted summarily by virtue of Section 127 (6). There was therefore no question of the case ever being heard before a jury; Parliament has chosen to preclude that. In the context of the case, the key words were clearly “grossly offensive”. There could be no doubt that by electing to post the clip on a public site dedicated to the showing of video images, which could be viewed anywhere, the message was “sent”, and no counter argument was submitted to the sheriff. Some commenters, though, have taken the view that the role of the sheriff at trial is the same as that of Humpty Dumpty in Through the Looking Glass – “When I use a word, it means just what I choose it to mean — neither more nor less.”
On this view, every sheriff, magistrate or judge applies a purely subjective test, viz. - “does this offend me?” That is not the view the law takes. While the statutory offence is of recent vintage, verbal comments giving rise to offence and alarm have been criminal for centuries, and cases can be found at common law in respect of written communications as far back as the time of Baron Hume. Sending a letter to a named individual in which threats were made to third parties, but not to the recipient himself, was found to be a relevant criminal charge in 1815. Hume’s view was that to be criminal there needed to be more than mere insult; there needed to be “circumstances of rage and disturbance as to justify alarm with the fear of further mischief”. As the common law developed in the context of breach of the peace, in the era where words travelled only as far as they could be heard and where publication was the province of authors and editors, the issue developed rather as one of disorderly conduct, although the use of offensive language directed at a third party not present at the time could still found a criminal charge into the 20th century; for example the comments made by the accused in PF Perth v Robert Mathieson, where a man clearly unhappy at the outcome of court proceedings accused a number of legal figures of being “cowardly, perjury-abetting vermin”.
Modern methods of communication make it absolutely obvious that words causing grave offence can travel round the world in seconds. Should the uttering of such words be criminal? While some hard-core libertarians take the view that no words ever used in any context should attract criminal sanctions, even where the words impart direct threats to personal safety, the more common and practical view is that there will always be limits on free speech; there is no “right” to shout fire in a crowded venue to cause panic, no right to defame by making knowingly false allegations, and no right to place someone in a state of fear by uttering direct threats. Should the law become involved where the person viewing or otherwise becoming aware of the comment that caused fear and alarm was not in any sense its intended recipient?
It is at least arguable that the import of the 2003 Act was not to create a whole new class of offence, but to ensure that behaviour that was criminal in other contexts could not escape punishment merely by virtue of it being sent electronically. Issues arising from the wording of the Act had come before the court several times. In respect of “offensive”, rather than indecent or obscene massages, the court had considered the sentencing issues in Rodgerson v PF Alloa, which involved an individual pleading guilty to making a number of grossly offensive remarks about the death of a child and sexual remarks about children. While the issue before the court related only to whether the offence merited registration under the Sexual Offences Act 2003, it did not express any disquiet as to the soundness of the plea. Again in Hill v HM Advocate, where the messages alleged that the complainer offered sexual favours to other men, there was no challenge to the validity of the conviction. The arguable distinction in Mr Meechan’s case, is that the persons offended were not the recipients of the original message.
The actions of Mr Meechan
On any view, Mr Meechan, while presenting himself as a champion of free speech, does not appear an obvious successor to the likes of Martin Luther King or Nelson Mandela, neither of whom ever gloried in the titles “Professional Shitposter” and “Edgi Boi [sic]”. His idea of humour is not one that many of an older generation would find amusing, although he seems unaware of the extent to which casual racism was a staple of mainstream television in the era in which Sheriff O’Carroll grew up. It must be said that his “comedy” is not notable for its subtlety, but the only issue for the courts related to a single video clip, posted in April 2016. It is not clear, nor does it matter, who first reported it to the authorities, but the Procurator Fiscal clearly formed the view at the outset that the content of the video was grossly offensive and thus merited prosecution. It seems to be accepted by all concerned that the words “gas the Jews” were repeated on 23 occasions, images of Adolf Hitler and the Nuremberg rally were shown, and strident music played. Equally, it seems beyond doubt that amongst those who viewed the video there was a significant proportion that actively saw it as racist, and as a vindication of their own racist views. Whether that was anticipated by Mr Meechan cannot be said with certainty, and he denies personally holding racist views, he seems at the very least to have been reckless as to the consequences of online publication.
Proceedings appear to have commenced some time in 2017 (the statutory time bar under the Act being one of three years), with evidence being heard from September 2017 until 20th March 2018. Mr Meechan’s explanation was that the video was made as a joke, intended only to annoy his girlfriend, the owner of the dog. However, this seemed inconsistent with its being posted on a public communications network on a channel to which she was not a subscriber. He accepted that the phrase “Gas the Jews” was anti-Semitic though not, he said, when used as part of a joke. In this regard I am reminded of the phrase much used by the late Sheriff Irvine Smith QC when faced with a submission more notable for optimism than reality – “brave, but doomed”. Whether Mr Meechan realised that the video would be seen by Jewish viewers is not clear, nor is it immediately apparent to what extent he considered their reaction. It appears that if he considered something to be a joke, so would every other viewer, although his channel is reported to have borne the words “provides offensive social comedy and skits that get people thrown in prison”. In any event, evidence was led from witnesses, including Ephraim Borowski of the Scottish Council of Jewish Communities, who were deeply offended, and Mr Meechan gave evidence in his own defence. Ultimately, as we know, he was found guilty and fined, although he expresses his wish to go to prison rather than pay the fine.
Freedom of speech
Much of the criticism of the court’s decision is based upon its effect upon the concept of “free speech”. It might be helpful to note at this stage the relevant part of the sentencing statement (emphasis mine) –
“[A]lthough I invited both legal representatives to make legal submissions during the trial about the law on freedom of expression, that was done only to a very limited extent. In the absence of focused submissions on that topic by either the Crown or the defence, all I can say is that, while that right is very important, in all modern democratic countries the law necessarily places some limits on that right.”
Some have sought to draw unflattering parallels between the decision of the court and certain well-known comedy moments focussing upon Nazi Germany. It seems obvious, to me at least, that in the famous “Germans” episode of “Fawlty Towers”, that Basil Fawlty is the butt of the joke, not the innocent guests. Likewise, it is difficult to interpret the joke in “Springtime for Hitler” in Mel Brooks’ “The Producers” as directed at anyone other than the (Jewish) theatrical producers seeking to profit from staging the most offensive and badly performed show imaginable. I cannot see that teaching a dog to raise its paw in response to anti-Semitic language is comparable in comedy terms. In any event, it appears that there was no meaningful debate on the application of Article 10 of the European Convention on Human Rights or citation of its leading case law. Whether this was a deliberate decision on the part of his agent is not clear from the trial judge and appeal judge’s comments, but given that Article 10.2, read short, states
“The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society….[and] for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others.”
British courts have never supported an unfettered right to speak in any manner at all. Whether in private or in public, there has always within a mature legal system been recognition that where words cause offence, this can stray into the realms of the criminal law. That Mr. Meechan was convicted, the court having rejected his defence, was therefore not wholly surprising to lawyers, although some on the fringes of comedy where the boundaries of “offence” may be somewhat fluid clearly disagree.
The Sheriff Appeal Court
Having been convicted and sentenced, Mr Meechan exercised his statutory right to appeal against both conviction and sentence, and it is here where the expectations of his supporters diverge most radically from legal reality. In summary proceedings, where the sheriff is the master of the facts and the sole arbiter on issues of credibility, an appeal by stated case to the Sheriff Appeal Court may only be made on a point or points of law.
The right to submit an appeal exists in all cases, but following concern at the amount of court time taken up with disposing of appeals which had no merit, the court now exercises a gatekeeping function, based upon the written grounds of appeal and the contents of the stated case as drafted by the sheriff and finalised after adjustment by prosecution and defence. This paper review is conducted by a single appeal sheriff who may either grant or refuse leave to proceed to a full court hearing. Where leave to appeal is refused, there is a statutory right to apply to a court of three Sheriff Appeal Court judges for leave to appeal, once again in writing; it “shall be considered and determined in chambers without the parties being present”. The powers and duties of the court of three sheriffs are the same. This, I would suggest, is a wholly unremarkable system. Either there are valid grounds of appeal or there are not. Whether the grounds are valid or not, they can be summarised in writing by a lawyer and submitted for consideration. An appeal is not a “second bite at the cherry”, but a process in which a higher court determines whether a lower court has failed to apply the relevant law correctly. There needs to be an identifiable error. In modern practice, most of the appeal process is conducted in writing, and where an appeal does proceed to a hearing the court requires to see full written argument from both sides some weeks in advance of the hearing itself. Mr Meechan has elected to publish documents which confirm that his case failed at both the first and second stage, the court being unable to identify any error of law.
Therefore, before any question of further oral argument could arise, no fewer than four senior sheriffs have considered the grounds of appeal and detected no error in the findings of the original sheriff. On any view, Mr Meechan has been given ample opportunity to ventilate his criticisms of the decision of the original sheriff. While some might argue that open justice suggests this should be done in public, the fact that Mr Meechan has chosen to post the decision online indicates both that the decision itself was not secret and the likely outcome of any oral submissions. At this stage I pause to note that a sum in excess of £190,000 was crowdfunded before leave to appeal was granted, on the surprising assertion that the costs of the appeal would exceed £100,000. Given that this was undertaken at a time when the SAC was considering paper documents, and when it was far from certain leave would be granted, the amount proposed in the crowdfunding request appears rather rash, and there will no doubt be a full accounting into how much was spent, and how money is to be refunded, given that an application to the Scottish Criminal Cases Review Commission (which conducts its own enquiries through public funding) will not generate much additional expenditure. While Mr Meechan seems determined at present to send himself to prison rather than accept his current penalty, the Terms of the GoFundMe site on which he sought donations offer very wide discretion to the fund manager – “[w]e assume no responsibility to verify whether the Donations are used in accordance with any applicable laws; such responsibility rests solely with the Campaign Organizer or Charity, as applicable.”
Finally, some comments need to be made anent the trenchant criticisms made of the solicitor who conducted the trial and later plea. I was not present in court so can base my comments only on the terms of the letter from the SAC, and do not propose to name him. Many commenters were deeply concerned with the appeal sheriff’s obvious unhappiness at the way in which the plea was presented, but this is once again fundamentally misunderstanding the role of the defence lawyer post-conviction and pre-sentencing.
While a case is at trial, the duty of the defence agent is to use his best endeavours, within what is permitted by law, to seek to have his client acquitted. His right to cross-examine witnesses and call defence evidence in accordance with his instructions is not restricted. However, once a verdict is delivered, the role of the defence lawyer changes. The appellate sheriffs recognise this, but it is less clear that the solicitor acted appropriately. There can be no criticism of an agent telling a court “My client maintains his innocence and intends to pursue the further legal avenues open to him.” Indeed, it is probably ethical to observe that an accused does not recognise the justice of the statute under which he was convicted, provided the agent recognises that everyone in the court is bound to conform with statute law as it exists at the time, and only the relevant Parliament may change or repeal the law. In my understanding it has never been regarded as appropriate for a solicitor, who is in addition to being the agent for his client an officer of the court and a member of a professional body with published practice rules to express a personal view on the soundness of a verdict. Law Society guidance states that a solicitor “must maintain due respect and courtesy towards the court while honourably pursuing the interests of your clients”.
In rejecting the finding of contempt of court against Aamer Anwar, who had made some public criticism of a verdict prior to sentence being passed, in July 2008 the High Court observed “If they are of the view that it is in their client's best interests to make public comments on court decisions in proceedings in which they have been involved, about which we say nothing, we consider that their duty to the court requires them, in doing so, to display the highest professional standards. In particular, we consider that they have a duty to ensure, first, that their public utterances, whether critical or not, are based upon an accurate appreciation of the facts of those proceedings, and, second, that their comments are not misleading.”
While the solicitor’s comments were made in the context of a plea in open court, it does appear that certain of his remarks went beyond the role of delivering a plea in mitigation; the suggestion of an “apparent attempt to intimidate the court” is clearly concerning, although I recognise that this may not be a wholly accurate assessment of what was said, and the solicitor’s reaction to the suggestion has not been made public. It is, though, worthy of note that the comments made by the appeal sheriff anent advice on contempt of court were based upon the trial sheriff’s report, rather than on the plea itself, the trial sheriff not apparently having considered the plea as giving rise to this possibility.
While many view the case as demonstrating deficiencies in the Scottish system of criminal justice, and recognising that there is clear room for improvement in our summary courts, I do not find either the trial, verdict or appellate procedure to present any objective concerns for the present or future.