David McKelvey, a former detective chief inspector in the Met Police, 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?’ he asked on LinkedIn, pointing out that other officers have been prosecuted for sending less offensive messages. ‘The law must be applied fairly to all – no exceptions.’
The police have now recorded this as a ‘non-crime hate incident’ so as not to be seen playing favourites, but a better alternative would be not to penalise anyone for something said in a private message group, which, to be fair, seems to be what McKelvey has in mind. That would mean repealing section 127(1) of the Communications Act 2003, but I have to confess to playing a small part in stopping that from happening. I think I was probably right, but you be the judge.
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 As a sop to free speech campaigners, the commission proposed that section 127(1) should be repealed at the same time (along with section 1 of the Malicious Communications Act 1988), and argued that the net effect would be a reduction in the number of speech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.
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