Sending a mean tweet about Captain Tom shouldn’t be a crime

Captain Tom Moore captured the nation’s hearts during the pandemic. The World War II officer completed 100 lengths of his garden at the age of 99 to raise money for NHS-related charities, attracting more than £30 million in donations and being knighted by the Queen. When he died last February, aged 100, the fond tributes and outpouring of sadness were universal. Well, almost. 

Glaswegian Joseph Kelly marked Captain Tom’s passing by tweeting a photograph of the veteran and the words:

‘The only good brit soldier is a deed one, burn auld fella, buuuuurn’.

Undoubtedly these words were offensive: to British soldiers, the memory of Captain Tom, and the English language. Kelly, who tweeted under the name 'Saor Alba' (Gaelic for ‘Free Scotland’), was being an idiot and deserved to be told so. That should have been the end of the matter. If only. 

Kelly, aged 36, has been convicted of sending a ‘grossly offensive’ tweet. He will be sentenced next month. Did those who reported Kelly’s tweet to the police do so because they were unable to reach his mum and ask her to give him a telling off? Kelly was prosecuted under Section 127 of the Communications Act (2003), which says a person breaks the law if he ‘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’.

Among those convicted under Section 127 are Kate Scottow, a feminist prosecuted after she ‘misgendered’ a transwoman; Jordan Barrack, a 20-year-old fined for drawing penises on a photograph of a policeman; and Paul Chambers, who was done for joking on Twitter about blowing up an airport after his flight was cancelled. It is also the provision under which Mark Meechan, known as Count Dankula, was convicted over a YouTube video in which he ‘trained’ his girlfriend’s pug to do a Nazi salute. Scottow’s and Chambers’ convictions were eventually overturned.

Whatever you think of what Joseph Kelly said, it remains important to defend his rights to free speech. Criminal patter should not land you a criminal record. Before anyone suggests Kelly’s freedom of expression wasn’t infringed, allow me to quote Adrian Cottam, the sheriff who convicted him:

‘The prosecution does interfere with freedom of expression but it is a necessary interference.’

Freedom of expression is not without limit. The depute fiscal, prosecuting, contended that, had Kelly shouted his remarks in public, he would likely have been arrested for a breach of the peace. He probably would have. But Kelly didn’t shout anything in public. He posted a nasty comment on social media, where users were not alarmed that ‘the breaking up of the social peace’ might be imminent, but rather were offended and turned to the criminal law to punish a viewpoint of which they disapproved. The criminal law is only too happy to oblige.

When it comes to speech and expression, the state should restrict its involvement to matters where harm is done, threatened or incited. It should not be in the business of dragging people through the courts for being offensive, a term whose public meaning expands wildly by the day. Section 127 should, at the very least, be amended to remove reference to offensiveness, but there is no prospect of this happening any time soon. Parliament is dominated by two parties equally dedicated to narrowing the scope of expressive liberty, whether in service of ‘online safety’ or combating ‘hate’. Freedom of speech is not a priority — only limiting it.