Ben Douglas-Jones, led by John McGuinness QC, represented the Director of Public Prosecutions in an important case concerning the right to free speech.
In DPP v Kingsley Smith, the Divisional Court found that four posts on Google+ were not merely an expression of the right to free speech: they were “menacing” or “grossly offensive”.
Smith was an Islamic revert who had made comments supportive of ISIS. He posted messages on You Tube clips (1) describing the conflict of radical Islam and the extreme right in Britain, (2) of the plea of the David Cameron, the then Prime Minister, from the pulpit of Oxford Cathedral for religious tolerance and (3) articles about ISIS and British Military power:
“If I saw Paul Golding [leader of the far right wing organisation “Britain First”] I would slice his throat.”
“David Cameron I'm gonna put an IED on your doorstep.”
“One day I will kill these kufr !!!! Allahu akbar".
“Allah Akbar kill the kufr!!!” (translated as “God is great, kill the disbeliever!”).
The Court found that the case was very different from Chambers, a case in which a joke in bad taste about blowing up an airport had been made. The messages were clearly not a joke:
The District Judge had first to consider whether the sole element of the actus reus that was in dispute on each charge, namely whether the relevant message was of the proscribed character, was proved. To answer that he had to ask himself whether, as a question of fact, taking account of the context and all relevant circumstances, and applying the standards of a reasonable person in an open and just multi-racial (and, I would add, multi-faith) society, it was proved that a particular message was grossly offensive to those to whom it related or was of a menacing character – i.e. would have created a sense of apprehension or fear in a person of reasonable fortitude who received or read it.
The District Judge did not do that in circumstances where there was a clear case that the messages were grossly offensive.